What would it take, legally and constitutionally, to change birthright citizenship in the United States?
Executive summary
A change to U.S. birthright citizenship would require more than an executive action: the prevailing legal view is that the Fourteenth Amendment’s Citizenship Clause and Supreme Court precedent protect jus soli, and only a constitutional amendment (passed by two‑thirds of both houses of Congress and ratified by three‑quarters of the states) could definitively eliminate unconditional birthright citizenship [1] [2] [3]. Proposals that Congress could do it by statute or that a president can end it unilaterally have been rejected by leading scholars and repeatedly blocked in courts [4] [5] [6].
1. The constitutional anchor: the Fourteenth Amendment and Wong Kim Ark
The Citizenship Clause of the Fourteenth Amendment—“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…”—is the foundational text that courts and scholars use to justify birthright citizenship, and the Supreme Court’s 1898 decision in United States v. Wong Kim Ark cemented a broad jus soli interpretation for children born on U.S. soil [1] [7] [8]. Legal historians note the Clause was designed after the Civil War to repudiate Dred Scott and to grant citizenship to those born in the country, including children of immigrants, a historical point central to defenders of the current rule [1] [7].
2. What an executive order can and cannot do
An executive order cannot rewrite the Constitution, and legal experts and several federal courts have stopped executive attempts to revoke recognition of birthright citizenship; courts have enjoined recent executive actions and scholars say the president lacks authority to unilaterally change citizenship rules [5] [6] [3]. The White House may direct agency practices—such as passport or benefits processing—but those administrative steps do not alter constitutional status or established statutory and judicial interpretations [9] [10].
3. Can Congress change birthright citizenship by statute? The competing claims
Some lawmakers and advocates argue Congress can “clarify” the Citizenship Clause by statute—pointing to the Clause’s phrase “subject to the jurisdiction thereof” and to Congress’s plenary power over naturalization—while others counter that statutory limits would conflict with the Fourteenth Amendment as interpreted by the Supreme Court and thus be unconstitutional [4] [11] [8]. The Congressional Research Service and major legal institutions have warned that statutes purporting to strip citizenship at birth would face immediate constitutional challenge and likely litigation up to the Supreme Court [8] [3].
4. The only foolproof route: a constitutional amendment—and the political barrier
The clearest, legally decisive path to change birthright citizenship is a constitutional amendment, which requires a two‑thirds vote in both the House and Senate and ratification by three‑quarters of the states (usually 38) — an intentionally high bar that reflects how consequential the change would be [2] [3]. Advocates for change face a steep political climb: achieving bipartisan supermajorities in Congress and broad state-level consensus on a divisive immigration and citizenship issue is historically rare and politically fraught [2].
5. Exceptions, litigation, and practical complications
Even existing doctrine recognizes narrow exceptions—children of foreign diplomats and hostile occupying forces, and historically certain Native American statuses—which complicates any neat legislative reframing of who is “subject to the jurisdiction” [7] [12]. Laws or orders that attempted to create multi-tiered citizenship at birth would trigger enormous administrative burdens (birth certificates, benefits eligibility) and immediate, high‑stakes litigation over equal protection and the original meaning of the Fourteenth Amendment [6] [2].
6. The political subtext and legal theater
Efforts to alter birthright citizenship are as much political signaling as they are legal campaigns: executive orders aim to galvanize constituencies and force court fights, while congressional bills serve to frame the debate even if their constitutional prospects are weak; critics call these moves a bid to change policy without the arduous democratic work of constitutional amendment [9] [4] [6]. Courts, meanwhile, become the arbiter of whether politics has crossed into constitutional violation—a dynamic visible in the flurry of injunctions and appeals seen after recent administration actions [13] [3].
Conclusion
Legally and constitutionally, the secure way to end unconditional birthright citizenship is a constitutional amendment requiring supermajorities and state ratification; statutory attempts or executive orders face strong scholarly, institutional, and judicial resistance grounded in the Fourteenth Amendment and Supreme Court precedent, and would almost certainly produce protracted litigation and administrative chaos [1] [2] [5].