The Fourteenth Amendment’s guarantee of birthright citizenship can be changed, but only through a constitutional amendment under Article V: two-thirds of both the House and Senate must propose the change, and 38 of the 50 states must ratify it. No executive order and no ordinary act of Congress can narrow it, a limit that has been tested repeatedly and is the subject of active Supreme Court litigation.
Why the Citizenship Clause Sits Above Ordinary Law
Section 1 of the Fourteenth Amendment says: “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.”1Congress.gov. U.S. Constitution – Fourteenth Amendment – Section 1 Because that rule lives in the Constitution rather than in a statute, it cannot be repealed or rewritten by the president acting alone, by Congress passing a bill, or by a federal agency changing a policy. The only tool that reaches it is the amendment process itself.
Federal statute repeats the constitutional rule at 8 U.S.C. § 1401, which grants citizenship at birth to a person born in the United States and subject to its jurisdiction.2Office of the Law Revision Counsel. 8 U.S.C. 1401 – Nationals and Citizens of United States at Birth Congress can add categories on top of that floor. It cannot lower the floor.
What Article V Actually Requires
Article V lays out the amendment process, and it was designed to be hard.3National Archives. U.S. Constitution Article V There are two stages, and both have to succeed.
Stage One: Proposing the Amendment
An amendment can be proposed in one of two ways. The route used for every successful amendment in U.S. history is a two-thirds vote in both the House of Representatives and the Senate.4Constitution Annotated. Overview of Article V, Amending the Constitution The Constitution requires two-thirds of the members present and voting, not two-thirds of total membership, so the exact number of votes needed depends on attendance.5GovInfo. House Manual – Article V With full attendance that works out to roughly 290 House votes and 67 Senate votes.
The alternative route has never been used. Two-thirds of state legislatures, currently 34 states, can call for a national convention to propose amendments. Congress would then be required to convene one, though the rules that would govern it remain largely untested.
Stage Two: Ratification by the States
A proposed amendment then has to be ratified by three-fourths of the states, currently 38 out of 50. Congress picks the ratification method. The standard method sends the amendment to state legislatures. The alternative sends it to specially elected state ratifying conventions, which has happened only once, for the Twenty-First Amendment that repealed Prohibition in 1933.6Congress.gov. Twenty-First Amendment – Repeal of Prohibition
The Constitution says nothing about time limits, but starting with the Eighteenth Amendment in 1917, Congress has attached a seven-year deadline to each proposed amendment. Whether Congress can extend or remove a deadline after the fact remains an open question.
Why These Numbers Have Held the Line
The Constitution has been amended only 27 times, and 10 of those amendments were ratified together as the Bill of Rights in 1791. Assembling two-thirds of both chambers on a politically divisive question is rare on its own; adding 38 state ratifications is another order of difficulty. That is why the Citizenship Clause has survived every attempt to narrow it. Proposals to change it tend to come in pairs: an executive order or bill for immediate political effect, and a proposed constitutional amendment for the actual legal change.
Why an Executive Order Cannot Do It
On January 20, 2025, the president signed an executive order titled “Protecting the Meaning and Value of American Citizenship,” directing federal agencies to stop issuing citizenship documents for two groups of children born on U.S. soil: those whose mothers were unlawfully present and whose fathers were not citizens or lawful permanent residents, and those whose mothers were on temporary visas (student, work, or tourist) and whose fathers were not citizens or lawful permanent residents.7The White House. Protecting the Meaning and Value of American Citizenship
The order was written to apply only to children born at least 30 days after it was issued. It has never taken effect. The first federal judge to review it called it “blatantly unconstitutional,” and every federal court since has reached the same conclusion, holding that it contradicts the text of the Fourteenth Amendment and the Supreme Court’s long-standing precedent.
The case reached the Supreme Court as Trump v. Barbara, with oral arguments held on April 1, 2026, and a decision expected by late June or early July 2026. The outcome will determine whether the executive branch can unilaterally redefine who qualifies for birthright citizenship, or whether that power belongs exclusively to the Article V process.
Why a Statute Cannot Do It Either
The Birthright Citizenship Act of 2025, introduced by Senators Graham, Cruz, and Britt, would limit citizenship by birth to children with at least one parent who is a citizen, a lawful permanent resident, or an active-duty service member.8U.S. Senate. Graham, Cruz and Britt Introduce Bill to Restrict Birthright Citizenship Similar bills have been introduced in prior sessions without advancing to a vote.
The constitutional problem is simple. Congress has broad power over naturalization and immigration, but a statute cannot override a constitutional guarantee. Congress can expand who qualifies for citizenship at birth. It cannot legislate below the floor set by the Fourteenth Amendment.
The One Narrow Opening: “Subject to the Jurisdiction”
The phrase “subject to the jurisdiction thereof” is where every serious modern argument over birthright citizenship happens. It narrows the guarantee slightly by excluding people who are not legally bound by U.S. authority at the time of a child’s birth, and in practice the recognized exceptions are very small: children born in the United States to accredited foreign diplomats,9U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 7 Part O Chapter 3 and children born to enemy forces during a hostile occupation of U.S. territory.10U.S. Department of State Foreign Affairs Manual. 8 FAM 301.1 – Acquisition by Birth in the United States Federal regulation confirms the diplomat exception directly: “A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States.”11eCFR. 8 CFR 1101.3
Everyone else born on U.S. soil is a citizen. The Supreme Court settled that in United States v. Wong Kim Ark (1898). Wong Kim Ark was born in San Francisco in 1873 to parents who were subjects of the Emperor of China but lived and worked permanently in the United States. Customs officials refused to readmit him after a trip abroad, arguing his parents’ status disqualified him. The Court disagreed, holding that the Fourteenth Amendment adopted the common-law principle that birth within a sovereign’s territory confers citizenship, and that Wong Kim Ark’s parents, being neither diplomats nor enemy occupiers, were subject to U.S. jurisdiction.12Justia U.S. Supreme Court Center. United States v. Wong Kim Ark – 169 U.S. 649 (1898)
That decision has stood for more than 125 years and every federal court to revisit the question has treated it as settled. The 2025 executive order and the pending Trump v. Barbara case attempt to reopen it by arguing that children of undocumented parents and temporary visa holders are not “subject to the jurisdiction” of the United States in the constitutional sense. If the Supreme Court agrees, the executive branch could restrict birthright citizenship without amending anything. If the Court holds to Wong Kim Ark, the only remaining route is Article V.
What Amending Cannot Reach Without a Separate Fight
Not every form of U.S. citizenship at birth flows from the Citizenship Clause, and the difference matters if you are thinking about what an amendment would and would not change. People born in the 50 states and the District of Columbia are citizens by direct constitutional right. People born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are citizens by federal statute.2Office of the Law Revision Counsel. 8 U.S.C. 1401 – Nationals and Citizens of United States at Birth People born in American Samoa are classified as “non-citizen U.S. nationals” rather than citizens.13U.S. Department of State Foreign Affairs Manual. Acquisition by Birth in American Samoa and Swains Island Citizenship for children born abroad to U.S. citizen parents is also statutory, governed by physical-presence rules that Congress has changed several times.
Because these categories rest on statute, Congress can already modify them without touching the Constitution. Any amendment aimed at the Fourteenth Amendment’s Citizenship Clause would affect only the constitutional guarantee for people born on U.S. soil, leaving the statutory pathways to be handled separately.