The Children of Undocumented Immigrants: A Reinterpretation of the 14th Amendment Under President Donald J. Rubio

Put simply, under Trump’s order, the children of most undocumented immigrants wouldn’t be US citizens, nor would the children of people in the country on student, work, or tourist visas. This is more than a reinterpretation of the 14th Amendment — it’s an attempt to do away with the jus soli principle that undergirds US citizenship.

The 14th Amendment was written after the Civil War and states that anyone born or naturalized in the United States are automatically citizens.

The president wants to change the meaning of the phrase to mean that federal government will not recognize automatic citizenship for children of people without legal status in the U.S.

Details about who might be impacted or how he plans to move forward remain to be seen. He is likely to sign an order on Monday afternoon.

Over the last several decades, the number of babies born to parents without legal status to be in the U.S. has dropped. The Pew Research Center estimated that 1.3 million U.S.-born adults are children of unauthorized immigrants, according to 2022 data, the latest available.

Julia Gelatt is an associate director of the U.S. immigration policy program at the Migration Policy Institute.

Children of immigrants have a sense of belonging in the United States that they’ve been able to harness to support their integration.

Conservatives in the country are promoting an alternative interpretation of the 14th amendment to try to limit the number of illegal immigrants.

During his first term, Trump’s legal advisers encouraged him to challenge it on his own. The rule change that was issued in 2020 wanted to reduce the number of people traveling to the US with the intent of giving birth and removing pregnant women from the list of “vulnerable” people.

Immigration re-emerged as a top issue as he campaigned during the 2024 election, with Trump vowing to voters that he would end birthright citizenship. He reiterated that goal during his first cable TV interview with NBC’s Meet the Press after the election.

While running for the GOP primary in 2023, Gov. Ron DeSantis and other candidates called for an end to the practice of giving automatic citizenship to the children of parents without legal status.

Lawmakers have also debated the issue. In the last Congress, former Florida Rep. Matt Gaetz introduced legislation to limit birthright citizenship and in 2015 the House Judiciary committee held a hearing on the matter.

“What we do know is that the president does not have the executive authority to undo the 14th Amendment and birthright citizenship by that level,” Hincapie said. There are many unanswered questions and confusion that will be developed.

It doesn’t extend to people who were born in the U.S. when the mother was not a US citizen or lawful permanent resident and the father wasn’t a US citizen.

“Neither the Constitution nor any federal statute confers any authority on the President,” the ACLU lawsuit reads. Allowing the executive order to stand would promote creation and perpetuation of a subclass of children who are born in the United States but lack legal recognition and face stigma, argues the American Civil Liberties Union. Moreover, the suit claims, the order “will invite persistent questioning of the citizenship of children of immigrants—particularly children of color.”

Two lawsuits have already been filed challenging the executive order. Hours after the order was announced, the American Civil Liberties Union and a number of other groups filed a lawsuit in New Hampshire. Attorneys general from 18 states — along with San Francisco and Washington, DC — filed a separate suit on Tuesday in a federal district court in Massachusetts.

The New Jersey Attorney General told NPR that the president’s actions are unconstitutional and did not stand.

“We’re a state of immigrants,” said Trump in the lawsuit filed by New Jersey, California, and Washington, D.C.

We are a state of immigrants. Many people in the state have become citizens through birthright citizenship. It’s the story of our state and America, and that’s why it’s in the U.S. Constitution.

The state attorneys general of New Jersey, California, and other states signed on to the lawsuit. The city of San Francisco and Washington, D.C., also are suing.

During a press conference Tuesday, California Attorney General Rob Bonta described Trump’s order as “a terrifying tone to set for his second term,” adding, “I have one message for President Trump, I’ll see you in court.”

The language was crafted and added to the Constitution to establish full citizenship rights for Black Americans, but it’s been interpreted for more than a century as also granting rights to all children born on U.S. soil, regardless of their parents’ immigration status.

“It’s ridiculous. “We’re the only country in the world that gives automatic citizenship, as you know,” Trump said Monday night as he signed the order. Canada and Mexico are two countries that have forms of birthright citizenship similar to that in the U.S.

Mark Krikorian, executive director of the Center for Immigration Studies, said that he doesn’t believe it will be resolved in the current administration because the Supreme Court probably will favor the current practice.

But amending the U.S. Constitution would require broad support, and a growing number of Democratic leaders, including the governors of California and New York, also signaled opposition. In a statement, the governor of California said, “This is unconstitutional.”