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Issue explainer

Birthright Citizenship

Birthright citizenship means people born on U.S. soil are U.S. citizens. A 2025 executive order tried to exclude children of parents here unlawfully or temporarily, and the Supreme Court struck it down in June 2026. The debate has moved to newer, narrower orders and to whether Congress should change the law.

The basics

The 14th Amendment says all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens1. A federal law, 8 U.S.C. 1401(a), uses the same words1.

On January 20, 2025, President Trump issued Executive Order 14160. It said children born here to parents who are unlawfully or temporarily present are not subject to U.S. jurisdiction and so are not citizens at birth1. Parents sued. A federal court in New Hampshire certified a nationwide class of affected children and blocked the order1. The order never took effect3.

On June 30, 2026, in Trump v. Barbara, the Supreme Court ruled 6 to 3 that the order was unconstitutional12. Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett and Jackson1. The majority relied on English common law, the reaction to the 1857 Dred Scott decision, and the 1898 case United States v. Wong Kim Ark1. Justice Kavanaugh agreed with the result only because the order conflicts with the federal statute, 8 U.S.C. 1401(a), and wrote that Congress could amend that statute1. Justices Thomas, Alito and Gorsuch dissented, arguing the Constitution ties citizenship to allegiance or domicile, meaning a person's legal home13.

On August 6, 2026, the President signed two new orders, Executive Orders 14418 and 14419410. One lists narrower categories of children who would not get automatic citizenship, such as children of foreign diplomats and some children of birth tourists45. The other lets the State Department and Homeland Security deny or revoke visas when the purpose of travel appears to be giving birth here45. On September 2, 2026, a federal judge in Maryland preliminarily blocked the government from applying the new citizenship order to children in the class certified in an earlier lawsuit against the 2025 order611. The ruling covers that class, not every category in the new order, and the case is ongoing11.

Key terms

Citizenship Clause
The first sentence of the 14th Amendment, ratified in 1868, which makes people born or naturalized in the U.S. and subject to its jurisdiction citizens1.
Subject to the jurisdiction thereof
The key phrase in the dispute. The Supreme Court held it covers children of parents who are here unlawfully or temporarily1.
Birth tourism
Traveling to the U.S. on a temporary visa for the purpose of giving birth here. It is the target of one of the August 2026 orders45.
Domicile
A person's legal, permanent home. The dissenting justices argued citizenship at birth depended on the parents' domicile1.
Class action
A lawsuit brought on behalf of a large group. The challenge to the 2025 order went forward as a nationwide class of affected children16.

In Texas

States do not decide who is a U.S. citizen, but Texas issues the birth certificates that families use to prove citizenship. In 2015, parents sued the Texas Department of State Health Services after it stopped accepting a Mexican consular ID for birth certificate requests7. The case settled on July 22, 2016, and Texas agreed to accept additional identity documents7.

Members of Congress filed briefs on both sides of the Supreme Court case. 216 congressional Democrats signed a brief defending birthright citizenship8. On November 4, 2025, U.S. Sen. Ted Cruz of Texas, whose seat is not on the 2026 ballot, led a brief supporting the order, arguing that automatic citizenship for children of parents here illegally conflicts with the 14th Amendment's original meaning and encourages illegal immigration9. A Senate bill, the Birthright Citizenship Act of 2025 (S. 304), would change the law by statute9.

How people see it

The strongest case for each view, in terms its supporters would recognize. We don't pick a side.

Keep birthright citizenship for all born here

Supporters say the Supreme Court has now confirmed that the Constitution guarantees citizenship at birth, as it has been understood for more than a century. They argue a clear rule avoids a class of U.S.-born children without citizenship and spares every family from having to prove their parents' status at birth. They say changing it would require a constitutional amendment.

Keep it, but crack down on birth tourism

Some who accept the ruling still want to stop people from getting visas just to give birth here. They support visa screening and penalties for commercial birth tourism businesses, while leaving citizenship at birth unchanged for everyone else.

Narrow exceptions by law or order

Supporters of the August 2026 orders say the Court itself recognized historical exceptions, and the government can spell those out, such as for children of diplomats or people who came only to give birth. They argue citizenship should reflect a real tie to the country.

End it for children of unlawful or temporary residents

Supporters argue the 14th Amendment was written to secure citizenship for freed slaves and their children, not to reward illegal entry or short visits. They say automatic citizenship creates an incentive for illegal immigration and that Congress should change the statute, as one justice suggested it could, or the Constitution should be amended.

Who decides

  • U.S. Supreme Court and federal courts: Decide what the 14th Amendment and federal law require. The Court ruled on the 2025 order in June 2026, and lower courts are reviewing the August 2026 orders.
  • U.S. Congress: Can amend the federal citizenship statute or propose a constitutional amendment, which needs two thirds of both chambers and ratification by three fourths of the states.
  • President: Issues executive orders directing how agencies document citizenship and grant visas.
  • Texas Legislature and state agencies: Do not decide citizenship, but set rules for issuing Texas birth certificates. A state legislature would vote on ratifying any constitutional amendment.

Questions to ask a candidate

  • After the June 2026 Supreme Court ruling, do you think Congress should change the citizenship law, and if so how?
  • Would you support a constitutional amendment on birthright citizenship?
  • Do you support the August 2026 orders on birth tourism and new exceptions?
  • How would you make sure U.S.-born children can prove their citizenship under any new rule?

Last reviewed 2026-09-26. Spotted something wrong? Every claim links to its source so you can check it yourself.

Sources

  1. Trump v. Barbara, No. 25-365 (opinion, June 30, 2026)Supreme Court of the United States
  2. Trump v. Barbara (Birthright Citizenship) case fileSCOTUSblog
  3. Supreme Court strikes down Trump's order ending birthright citizenshipSCOTUSblog
  4. Fact Sheet: President Donald J. Trump Ends Birth Tourism and Protects the Meaning and Value of American CitizenshipThe White House
  5. What to know about Trump's new attempt to limit birthright citizenshipPBS NewsHour (Associated Press)
  6. District Court Issues Preliminary Injunction Against Latest Executive Order on Birthright CitizenshipFragomen
  7. Perales Serna v. Texas Department of State Health ServicesCivil Rights Litigation Clearinghouse
  8. House Democrats' Litigation Task Force Files Bicameral Amicus Brief Defending Birthright CitizenshipU.S. House Democratic Litigation Task Force
  9. Sen. Cruz Leads Amicus Brief in Support of Trump Executive Order on U.S. CitizenshipOffice of U.S. Sen. Ted Cruz
  10. Ending Birth Tourism (Executive Order 14419, 91 FR 51993, August 11, 2026)Federal Register
  11. Federal judge in MD blocks Trump's latest attempt to limit birthright citizenshipThe Daily Record (Maryland)