The constitutional text
The Fourteenth Amendment, ratified in 1868 after the Civil War, declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.' It was written largely to guarantee citizenship to formerly enslaved people, overturning the Supreme Court's 1857 Dred Scott decision.
How the courts have interpreted it
In United States v. Wong Kim Ark (1898), the Supreme Court ruled that a man born in San Francisco to Chinese parents who were not U.S. citizens was himself a citizen under the Fourteenth Amendment. That ruling has been the controlling precedent for more than a century, and federal agencies have applied it broadly to nearly all children born on U.S. soil, with narrow exceptions such as children of foreign diplomats.
The scale of the issue
A 2019 Pew Research Center analysis estimated that about 250,000 children were born in the United States to unauthorized immigrant parents in 2016. That figure was down from a peak of roughly 390,000 in 2007. Births to unauthorized immigrants represent a small share of overall U.S. births each year, but the totals are central to policy debates over immigration enforcement.
Arguments for ending the policy
Supporters of ending birthright citizenship argue that it creates an incentive for unauthorized immigration, since a child born here gains citizenship regardless of the parents' status. They contend the original drafters did not intend to extend automatic citizenship to children of people in the country illegally, and that the phrase 'subject to the jurisdiction thereof' was meant to exclude such cases. They also note that most countries, including most of Europe, do not offer unconditional birthright citizenship.
Arguments for keeping it
Opponents of changing the policy say birthright citizenship is a clear constitutional guarantee tied to post-Civil War civil rights protections, and that the Wong Kim Ark precedent has settled the legal question. They argue that narrowing the rule would create a class of stateless children, complicate hospital and government record-keeping, and undermine a uniform standard of citizenship that has applied for more than 150 years.
How it could be changed
Amending the Constitution requires a two-thirds vote in both chambers of Congress and ratification by three-fourths of state legislatures — a high bar that has been cleared only 27 times in U.S. history. Some legal scholars, however, argue Congress could redefine 'subject to the jurisdiction thereof' by statute to exclude children of unauthorized immigrants, while others contend such a law would conflict with the Fourteenth Amendment and be struck down by the courts. Any change by executive action would almost certainly face immediate legal challenge.