From Jus Soli to Legal Battles: Unpacking the Origins, Legalities, and Future Implications of the US Birthright Citizenship

The ban on the US birthright citizenship (jus soli-right of the soil) by the 47th President of the United States Donald Trump is probably one of the most discussed topics at this moment across the globe. This means babies born on the US soil are no longer entitled to obtain citizenship automatically by birth.

Earlier President Donald Trump termed it as “birth tourism” and banned this century long constitutionally guaranteed right immediately after being sworn. He signed the directive called “Protecting the Meaning and Value of American Citizenship” on 20 January. However, the order would take effect in the following 30 days.

The Origin of the Birthright Citizenship in the USA

The US citizenship was mainly regulated by the laws of individual states since the independence of the country in 1776. Although the Supreme Court of the United States (SCOTUS) ruled that slaves brought to the US and their descendants could not be considered citizens in the Dred Scott v. Sandford (1857).

Nonetheless, the 14th amendment to the USA Constitution provides legal recognition of citizenship by birth and states ‘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’.

Afterwards, in United States v. Wong Kim Ark (1898), the SCOTUS held that laws passed by Congress cannot exclude persons born in this country from the operation of the broad and clear words of the Constitution. The SCOTUS decided regardless of the citizenship status of Wong’s parents, he was “subject to the jurisdiction” of the US and qualified for citizenship as a child born in the country, Justice Horace Gray wrote for the majority. Additionally, the court confirmed that “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth”.

Later in 1924, the Congress widened citizenship for all Native Americans born in the United States. The Immigration and Nationality Act of 1952 defined citizens and also recognized birthright citizenship. Subsequently in 1982, in Plyler v. Doe, the SCOTUS reaffirmed birthright citizenship for children of undocumented immigrants.

Exceptions to the Rule

Child born in the US to a foreign diplomatic officer with diplomatic immunity are not considered as the US citizen because they are not subject to the jurisdiction of the United States.

Moreover, in 2021, the SCOTUS declared that anyone born in American Samoa’s unincorporated territories are not automatically guaranteed birthright citizenship, unless Congress enacts legislation. Also, the baby of enemy occupiers – does not have the birthright citizenship.

The Contents of the Executive Directive

The order creates two groups of individuals born in the US who would not be entitled to get by birth citizenship automatically. Firstly, those whose mother was unlawfully present in the US and whose father was not a US citizen or lawful permanent resident at the time of the child’s birth; and secondly those whose mother was in the US on a lawful but temporary visa i.e as a student or tourist and whose father was not a US citizen or lawful permanent resident at the time of the birth.

The order relies on legal interpretation that the phrase “subject to the jurisdiction” of the US would not be applicable for the undocumented immigrants. Although Plyler v. Doe (1982) promulgated that according to the 14th Amendment, there was “no plausible distinction” between immigrants who entered lawfully and those who entered unlawfully as both were subject to the civil and criminal laws of the State they resided in.

Temporary Restraining Order by the Court

The US District Judge John C. Coughenour issued a ruling on 23 January in response to suit from a coalition of states — Washington, Arizona, Illinois and Oregon that temporarily restraining Trump’s order nationwide for next 14 days. The court called the order as blatantly unconstitutional to the 14th amendment. President Trump’s administration will challenge the restraining order.

The Consequences of the Order Abolishing Birthright Citizenship

Donald Trump claimed that the US is the only state offering birthright citizenship. Although more than 30 countries have the same system of acquiring citizenship including Argentina, Brazil, Canada, Mexico, Uruguay, Venezuela etc. On the contrary, more than 20 countries have reversed or rolled back their policies like the UK, Ireland etc. 

There were an estimated 11 million immigrants in the U.S. illegally in January 2022, a figure that some analysts now place at 13 million to 14 million. Their US-born children are considered by the government to have the US citizenship. 

This new presidential directive eliminating birthright citizenship if sustained from the court will affect immigrants and short-term visa holders. Citizenship status and associated issues of newborns would be affected from now. Furthermore, the president will get to decide who is subject to the jurisdiction of the United States and who is not.

Even if the Trump administration is unable to completely ban birthright citizenship of the children of certain immigrants for court’s intervention, officials have reportedly been exploring other ways to tackle the ‘birth tourism’. For instance, they could try to restrict short-term visas for pregnant travellers, so those travellers couldn’t give birth in the boundary of the US.

Birthright Citizenship for Foreigners in Bangladesh

Bangladesh does not recognize birthright citizenship under its citizenship laws. Section 4 of the Citizenship Act of 1951 stipulates that a person shall not be a citizen by birth if his father possesses immunity as an envoy of a sovereign power and is not a citizen of Bangladesh or his father is an enemy alien, and the birth occurs in a place then under occupation by the enemy.

Enemy aliens are people who do not recognize or refuse to recognize the sovereignty, territorial integrity and independence of Bangladesh and whose country of citizenship is, or was, at war with Bangladesh since the declaration of independence. However, citizenship of Bangladesh can be acquired by birth if the identity or nationality of the parents is unknown except children of enemy aliens born in Bangladesh, people residing illegally or refugees in Bangladesh. That is why, Rohingya babies and stranded Pakistani Bihari community’s children do not get citizenship of Bangladesh until 2008 when the High Court Division gave citizenship to stranded Pakistani Urdu-speaking people in Bangladesh in Md. Sadaqat Khan (Fakku) and Others v. Chief Election Commissioner, Bangladesh Election Commission.

Does Ireland Permit Birthright Citizenship?

A child born in the Republic of Ireland was an Irish citizen by birth until 31 December 2004 through the 19th Amendment of the Constitution of Ireland in 1998. However, subsequently, in 2004 the 27th Amendment of the Irish Constitution abolished the automatic right to citizenship by birth for anyone born in Ireland after 1 January 2005 and gave authority back to the Oireachtas (the Irish Parliament) to decide on laws about citizenship by birth.

Published in the Bonik Barta as Op-ed on 28 January 2025

Published in The Daily Star at Law and Our Rights page on 1 February 2025

Published on the Student Independent News (SIN) on 1 February 2025.