Birthright Citizenship: Constitutional Basis and 2025 Executive Order

Birthright citizenship is the automatic grant of U.S. citizenship to a person at the moment of birth, based either on being born on American soil or on being born abroad to a U.S. citizen parent. It requires no application, no test, and no waiting period. The Fourteenth Amendment guarantees it to virtually everyone born in the United States, and federal statute extends it to certain children born to citizen parents overseas. A January 2025 executive order tried to narrow the rule for children of some noncitizen parents, but federal courts have blocked it, and the Supreme Court is expected to rule in 2026.

The Constitutional Foundation

The Citizenship Clause of the Fourteenth Amendment reads: “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.”¹ It was ratified in 1868.

Federal statute puts specifics on that constitutional guarantee. Under 8 U.S.C. § 1401, a person is a citizen at birth if they are born in the United States and subject to its jurisdiction, born abroad to two citizen parents (with minimal residency requirements), or born abroad to one citizen parent and one noncitizen parent (with stricter physical-presence rules).²

The Supreme Court settled the soil-based reading of the amendment in United States v. Wong Kim Ark in 1898. Wong Kim Ark was born in San Francisco to Chinese parents who were domiciled in the United States but not citizens. When the government tried to deny him reentry, the Court held that a child born on U.S. soil to noncitizen parents who reside here is a citizen by birth under the Fourteenth Amendment. The parents’ nationality did not matter.³ That holding has governed the rule for more than 125 years.

Two Ways to Acquire It at Birth

Birthright citizenship in the United States runs through two separate principles. Most people become citizens through only one of them, but some qualify under both.

The first is jus soli, “right of the soil.” Almost any child born within U.S. borders is a citizen at birth regardless of the parents’ immigration status or nationality. Only about 33 countries worldwide still grant unrestricted jus soli citizenship.

The second is jus sanguinis, “right of blood.” U.S. citizen parents can transmit citizenship to a child born outside the country. The requirements depend on whether one or both parents are citizens, and on how much time the citizen parent spent in the United States before the child was born.²

When a Parent Passes Citizenship to a Child Born Abroad

If both parents are U.S. citizens, the rule is simple: at least one of them must have resided in the United States or its territories at some point before the child’s birth. No minimum length is specified.²

If only one parent is a citizen, the bar is higher. That parent must have been physically present in the United States for at least five years total before the child’s birth, with at least two of those years after the parent turned 14. A citizen parent who left the country as a young teenager and never came back for long enough may not be able to transmit citizenship at all.

There is relief for families in federal service. Time spent on honorable military service, working for the U.S. government, or working for a qualifying international organization counts toward the physical-presence requirement, and the same credit extends to unmarried dependent children living in the household of a parent serving in those roles abroad.²

A child who qualifies through a parent still needs documentation. The primary document is a Consular Report of Birth Abroad, issued by U.S. embassies and consulates for children under 18. The CRBA is official proof that a child born in a foreign country was a citizen at birth. It is not a birth certificate, and it does not establish legal parentage or custody.⁴

The application starts online and is finished in person at a U.S. embassy or consulate. The fee is $100, and passport fees apply separately if you request a passport at the same time. Bring the child’s foreign birth certificate, proof of the citizen parent’s citizenship, and evidence the citizen parent met the physical-presence requirement. School transcripts, old passports, military service records, and Social Security statements all work.

Do not wait. Once the child turns 18, they are no longer eligible for a CRBA, and proving citizenship becomes more difficult, often requiring a formal claim through USCIS.

U.S. Territories and the American Samoa Boundary

Federal law extends birthright citizenship to people born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands. They hold the same citizenship status as someone born in one of the 50 states.⁵

American Samoa is the exception. People born there are classified as U.S. nationals, not citizens. Nationals owe allegiance to the United States, can travel, live, and work anywhere in the country without a visa, but cannot vote in federal elections and lack some other rights of citizenship unless they naturalize.⁶ The Supreme Court declined in 2022 to hear a challenge to that distinction, and the rule remains in place.⁷

The Diplomat Exception

The Fourteenth Amendment’s “subject to the jurisdiction” language creates one narrow carve-out. Children born in the United States to accredited foreign diplomats with full diplomatic immunity are not citizens at birth. Because their parents are treated as representatives of a foreign sovereign and are immune from most domestic legal obligations, the family sits outside U.S. jurisdiction for citizenship purposes.⁸

Federal regulations state this plainly: a child born to a foreign diplomatic officer accredited to the United States “is not subject to the jurisdiction of the United States” and “is not a United States citizen under the Fourteenth Amendment.”⁹ The exception is limited to diplomats with full immunity. Staff of foreign missions who hold lesser immunity are not covered, and their U.S.-born children are citizens.

The 2025 Executive Order and Where the Rule Stands Now

On January 20, 2025, an executive order titled “Protecting the Meaning and Value of American Citizenship” tried to narrow birthright citizenship for the first time since the Fourteenth Amendment was ratified. It directed federal agencies to stop issuing citizenship documents for children born in the United States if the mother was unlawfully present and the father was not a citizen or lawful permanent resident, or if the mother’s presence was lawful but temporary (a tourist, student, or work visa) and the father was not a citizen or lawful permanent resident.¹⁰

The order was set to take effect 30 days after signing. It never did. Federal judges in Washington, Maryland, and Massachusetts each issued injunctions blocking enforcement, and Judge John Coughenour in Washington called the order “blatantly unconstitutional.” A class-action ruling in Barbara v. Trump then certified a nationwide class protecting all babies born on U.S. soil from the order.

The Supreme Court accepted the case for full argument in December 2025, heard oral arguments in April 2026, and a decision is expected by late June 2026. Until the Court rules, the executive order is unenforceable, and birthright citizenship operates as it has since 1868.

Can the Government Take Birthright Citizenship Away

No, not against your will. In Afroyim v. Rusk (1967), the Supreme Court held that “Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof.” Citizenship, the Court said, is a constitutional right protected against “a congressional forcible destruction.”¹¹

A birthright citizen can lose citizenship only through voluntary acts: formally renouncing nationality before a U.S. consular officer, swearing allegiance to a foreign state with the intent to give up U.S. citizenship, or committing treason. Voting in a foreign election or serving in a foreign military does not automatically strip citizenship unless the person specifically intended to relinquish it.

Citizens who do decide to give it up must go through a U.S. embassy or consulate abroad. As of April 13, 2026, the State Department charges $450 for processing a Certificate of Loss of Nationality, down from the previous $2,350 fee that had been in place for years.¹² The administrative fee is the cheap part. The expatriation tax under 26 U.S.C. § 877A treats a “covered expatriate’s” property as if sold the day before expatriation, triggering tax on any unrealized gains. A person is a covered expatriate if their net worth is $2 million or more, or if their average federal income tax liability over the prior five years exceeds an inflation-adjusted threshold (approximately $211,000 for 2026). The statute excludes a base amount, adjusted annually for inflation and set at $600,000 for reference, from the exit tax.¹³

Dual Citizenship and Tax Obligations

Because the United States recognizes citizenship through both soil and parentage, many people are dual citizens from birth. A child born in the U.S. to parents who are citizens of a country that also grants citizenship by blood holds two citizenships at once. The same applies to a child born abroad to a U.S. citizen parent in a country that grants jus soli citizenship.

The United States does not require dual citizens to pick one. You can hold a U.S. passport and a foreign passport at the same time, though you must enter and exit the United States on your U.S. passport. Practical complications come up mainly in two areas. The first is tax filing: U.S. citizens owe tax on worldwide income regardless of where they live, so a child who becomes a citizen at birth and then spends their entire adult life abroad still has U.S. filing obligations. Many dual citizens discover this years after the fact. The second is security clearances. Holding a foreign citizenship does not disqualify you, but adjudicators look at how actively you exercise it. Holding it passively is treated as low risk. Voting in foreign elections, collecting foreign government benefits, or regularly using a foreign passport draws more scrutiny.

On the U.S. side, the immediate legal benefits of birthright citizenship are the same for a newborn as for anyone else: eligibility for a U.S. passport, the permanent right to live and work anywhere in the country, and eventually the right to vote in federal elections and access federal benefits programs. Parents can apply for a Social Security number for a newborn at the hospital when the birth certificate is issued, or later online and in person at a Social Security office. There is no fee.¹⁴

1
Congress.gov. Constitution Annotated
2
Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth
3
Justia U.S. Supreme Court Center. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
4
Travel.State.Gov. Birth of U.S. Citizens and Non-Citizen Nationals Abroad
5
U.S. Citizenship and Immigration Services. Policy Manual – Becoming a U.S. Citizen
6
Office of the Law Revision Counsel. 8 USC 1408 – Nationals but Not Citizens of the United States at Birth
7
U.S. Department of State. 8 FAM 308.2 Acquisition by Birth in American Samoa and Swains Island
8
U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 7 Part O Chapter 3
9
eCFR. 8 CFR 1101.3 – Creation of Record of Lawful Permanent Resident Status for Person Born Under Diplomatic Status in the United States
10
The White House. Protecting the Meaning and Value of American Citizenship
11
Justia U.S. Supreme Court Center. Afroyim v. Rusk, 387 U.S. 253 (1967)
12
Federal Register. Schedule of Fees for Consular Services – Fee for Administrative Processing of Request for Certificate of Loss of Nationality of the United States
13
Office of the Law Revision Counsel. 26 USC 877A – Tax Responsibilities of Expatriation
14
Social Security Administration. Social Security Numbers for Children