For generations, people who have lived and worked in the United States have assumed that if they wind up having a child there, that child will have the right to citizenship, which comes with official documents and government ID.
That may soon change.
U.S. President Donald Trump issued an executive order on his first day in office that stunned immigration watchers in its scope.
Everyone expected him to try ending birthright citizenship for the children of people who entered the U.S. illegally, undoing over 125 years of accepted constitutional law. But he then went a giant step further. As currently written, his order applies to millions more people working legally inside the U.S. on non-immigrant work visas — including many Canadians — thrusting additional families into legal limbo. Only children of at least one permanent resident will be spared.
“It’s unprecedented,” said Angela Maria Kelley, senior adviser to the American Immigration Lawyers Association.
“This would be a historic upending of our national identity. And just the basic principle that if you’re born here, you belong here. And that your parents’ past is not your future.”
The order isn’t retroactive — it only applies to future births, starting next month. And it will be challenged in court, already facing multiple lawsuits.
In the meantime, it means uncertainty for people, and what could be a years-long, epic legal battle all the way to the U.S. Supreme Court.
The current order appears to forbid citizenship documents for a broad swath of children, from those of tech workers on temporary visas, to long-standing employees of international institutions like the United Nations.
It says no U.S. officials are to provide or accept citizenship documents for the child of a mother on a lawful but temporary status, like a work, student or tourist visa, when the father is neither a citizen or permanent resident.
Challenging 125 years of law
Trump knows legal challenges are coming. He acknowledged as much while signing the order in the Oval Office, on Monday evening.
“That’s a good one. Birthright. That’s a big one,” Trump said, chatting with reporters as he signed executive orders in succession.
He expressed confidence he has legal grounds to do this. But he also appeared unaware of the most basic fact of the case.
Trump stated that the U.S. is the only country with birthright citizenship: “It’s just absolutely ridiculous.”
But citizenship as a birthright is conferred by dozens of countries around the world, like the vast majority of the Americas — including Canada.
Others have it with conditions, and some don’t have it at all, including most of southern and eastern Europe, North Africa and Asia. This change will make things especially complicated, Kelley said, for people who have a child in the U.S., if their own native country doesn’t recognize extra-territorial birth.
This would risk their children being stateless, she said. Pregnant women living in the U.S. would need to not only examine American law, but also the law in their own country, and decide where to deliver.
Who’s at risk
Lawsuits that were immediately filed against the order listed some of the potential impacts on people, including one suit from more than 20 blue states.
Untold numbers will be stateless, the suit says — ineligible for everything from a driver’s licence to a Social Security number and the ability to work legally.
“They will all be deportable, and many will be stateless,” said the suit.
“The result will be a multigenerational class of marginalized families, who with each generation grow increasingly disconnected from any country but the United States, yet will remain forever outsiders.”
Another suit carried testimonials about people affected. It was filed by Indonesian and Latino community groups in U.S. District Court in New Hampshire.
One couple came to the U.S. on tourist visas in 2023, it states, and have applied for asylum; they have a child due in a month.
Another woman has lived in the U.S. for over 20 years; she was brought illegally as a child, and is now in the so-called Dreamers program. She has a baby due in March.
They’re among several anecdotes mentioned in the suit of people with no official papers, keeping their identities confidential.
The backstory starts with the Civil War
Their case may now hinge on the interpretation of a 157-year-old constitutional amendment.
Written in the aftermath of slavery, the 14th Amendment negated the Dred Scott case, a racist ruling by the U.S. Supreme Court declaring that the descendants of African American slaves could not be citizens.
The 1868 amendment clarified that U.S. citizenship belonged to everyone born in the United States and “subject to the jurisdiction thereof.”
The current fight hinges on that last part in quotes.
Historically, it’s been interpreted to mean virtually everyone born in the U.S. except for those children of certain categories of diplomat, benefiting from full diplomatic immunity.
But Trump’s allies are challenging the most significant case on this issue, involving the U.S.-born son of Chinese migrants.
Wong Kim Ark was born in San Francisco’s Chinatown in 1873. Twenty-two years later, he visited his parents’ homeland, China, and was denied re-entry to the U.S. on the claim that he wasn’t a citizen.
And, he was ineligible for citizenship because of an anti-Chinese law at the time.
He fought his case all the way up to the Supreme Court. In 1898, that court ruled, 6-2, that Wong was, in fact, an American.
The ruling pointed not only to the 14th Amendment; it also made clear that members of Congress who drafted the amendment were aware it could apply not just to former slaves but also to immigrants.
A minority of judges criticized the decision at the time, and since then, some have called it a selective reading of the drafters’ intention.
Critics insist the amendment was never intended to be applied this broadly. And after 127 years, opponents of the decision got a president to try challenging it.
“The privilege of United States citizenship is a priceless and profound gift,” the opening words of Trump’s executive order read, as it goes on to lay out new categories of people now ineligible for it.
