The Birthright Citizenship Act of 2025—introduced as H.R. 569 in the House and S. 304 in the Senate—seeks to redefine who qualifies as a U.S. citizen at birth. This is different from the Executive Order of President Trump which has been recently in news. This Birth Right Citizenship Act has been sponsored by Rep. Brian Babin (R-TX) and Sen. Lindsey Graham (R-SC), the bill proposes to amend the Immigration and Nationality Act (INA) to state that a child born in the U.S. will be considered a citizen at birth only if at least one parent is:
- A U.S. citizen or national,
- A lawful permanent resident residing in the United States, or
- A member of the U.S. armed forces in lawful status.
Children born to undocumented immigrants or temporary visa holders—such as those on H-1B, L-1, TN, or F-1 status—would not acquire citizenship by birth under this bill.
The bill includes the following statutory language:
“A person born in the United States shall not be considered ‘subject to the jurisdiction’ of the United States for purposes of clause 1 of section 1 of the 14th Amendment to the Constitution unless the person is born in the United States of parents, one of whom is—
(A) a citizen or national of the United States; (B) an alien lawfully admitted for permanent residence whose residence is in the United States; or (C) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).”
This legislative effort coincides with ongoing legal battles over Executive Order 14156, which seeks to implement a similar restriction through administrative means.
You may wonder why both the House and the Senate introduced separate versions of this bill. This is a common legislative practice. Although H.R. 569 and S. 304 contain nearly identical language and objectives, introducing parallel bills in each chamber allows them to move independently through committee and floor procedures. If both pass, any minor differences can be reconciled by a conference committee before being sent to the President.
What the Constitution Says
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.”
The dispute centers on the phrase “subject to the jurisdiction thereof.” Supporters of the Act argue that this phrase excludes children of those who are unlawfully present or temporarily admitted. Critics argue that the clause has already been definitively interpreted by the Supreme Court.
The Precedent: United States v. Wong Kim Ark (1898)
Here are some of the most relevant excerpts from the Court’s opinion that explain the meaning of “subject to the jurisdiction” and how the Court interpreted the Citizenship Clause:
- “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”
- “The jurisdiction meant by the Fourteenth Amendment is not merely subject to the laws, but complete jurisdiction; that is, the same jurisdiction in extent and quality as applies to citizens of the United States generally; and the words ‘subject to the jurisdiction thereof,’ in the amendment, were intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
- “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
- “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”
These passages formed the legal foundation for interpreting the Citizenship Clause as providing birthright citizenship to nearly everyone born on U.S. soil, regardless of their parents’ immigration status, with very limited exceptions.
In this landmark case, the Supreme Court held that a child born in San Francisco to Chinese parents was a U.S. citizen by birth, even though his parents were not U.S. citizens. Wong’s parents were domiciled in the U.S. and legally residing, though they were barred from naturalization under the Chinese Exclusion Act.
Importantly, the Court emphasized that children born on U.S. soil, except those of foreign diplomats or hostile occupying forces, are citizens if they are “in the allegiance and under the protection of the United States.”
While Wong’s parents were not permanent residents in the modern legal sense, they were considered domiciled in the U.S. This concept—lawful, settled residence with no intent to leave—may be seen as akin to permanent residency, which did not formally exist until the Immigration and Nationality Act of 1952.
Allegiance and Jurisdiction
The Court in Wong Kim Ark interpreted “allegiance” not as political loyalty or exclusive citizenship, but as legal subjection to U.S. laws. Children born to parents who are present in the United States and subject to its laws—including those on temporary visas and those who are undocumented—are, under this logic, “subject to the jurisdiction” of the U.S.
This interpretation was reinforced in Plyler v. Doe (1982), where the Court held that even undocumented immigrants are “persons within the jurisdiction” of a U.S. state.
Here is the key language from the majority opinion written by Justice Brennan:
“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even undocumented aliens, are ‘persons’ within the meaning of the Fifth and Fourteenth Amendments.” (Plyler, 457 U.S. at 210)
And more specifically:
“No plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Plyler, 457 U.S. at 215)
The Court reasoned that so long as individuals are present and subject to U.S. laws, they fall within the jurisdiction of the state and are thus entitled to constitutional protections. This includes undocumented immigrants.
Can Congress Clarify a Constitutional Term?
Congress does have authority to pass laws that enforce constitutional amendments, particularly under Section 5 of the Fourteenth Amendment. Supporters of the Birthright Citizenship Act may argue that it is simply an effort to enforce the Citizenship Clause.
However, the Supreme Court has placed clear limits on Congress’s enforcement powers. In City of Boerne v. Flores (1997), the Court stated:
“Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.”
The Court emphasized that:
“The power to interpret the Constitution in a case or controversy remains in the Judiciary.”
This means that while Congress may pass laws to enforce the rights the judiciary has recognized, it cannot redefine constitutional terms or adopt an interpretation at odds with existing precedent. Since the Supreme Court interpreted the phrase “subject to the jurisdiction” in Wong Kim Ark to include nearly everyone born on U.S. soil (with narrow exceptions), a law attempting to reinterpret that term would likely be unconstitutional.
Therefore, although Section 5 provides a means for Congress to legislate in support of the Fourteenth Amendment, it does not authorize Congress to overturn or reinterpret Supreme Court precedent. As the question of what constitutes ‘subject to the jurisdiction’ is now being actively litigated in the lower federal courts, and is expected to reach the Supreme Court, most lawmakers are likely to wait for a definitive judicial ruling. As a result, the Birthright Citizenship Act is unlikely to advance in the near future.
Common Law Origins and Departure by the United Kingdom
The Supreme Court in Wong Kim Ark based its interpretation of the Fourteenth Amendment on the English common law principle of jus soli—citizenship by birth within the sovereign’s territory. Under this doctrine, any person born on British soil, with very limited exceptions such as children of diplomats or hostile occupiers, was deemed a natural-born subject. The Court relied on this long-standing legal tradition to interpret the phrase “subject to the jurisdiction thereof” as applying broadly to nearly all U.S.-born individuals.
In 1983, however, the United Kingdom moved away from this common law approach with the enactment of the British Nationality Act. Since then, a child born in the U.K. does not automatically acquire citizenship unless at least one parent is a British citizen or settled in the U.K.
In contrast, the U.S. incorporated the jus soli principle into its Constitution through the Fourteenth Amendment, making it a constitutional guarantee rather than a matter of statutory policy. While the U.K. was able to change its approach through ordinary legislation, the U.S. remains bound by the Constitution and the judicial interpretations that uphold it.. Under current U.K. law, a child born on British soil does not acquire citizenship automatically unless at least one parent is a British citizen or settled in the U.K.
However, this marks a significant departure from the legal tradition that originally shaped the U.S. Constitution. The Supreme Court in Wong Kim Ark based its interpretation of the Fourteenth Amendment on the English common law principle of jus soli—citizenship by birth within the sovereign’s territory. That common law rule recognized that all persons born on the king’s soil, with few exceptions (like children of foreign diplomats), owed temporary and automatic allegiance to the crown and were entitled to the status of natural-born subjects.
The Court concluded that the Fourteenth Amendment incorporated this common law doctrine into the Constitution. Thus, the concept of birthright citizenship became a constitutional guarantee in the United States, not just a matter of legislative policy as in the U.K. While the U.K. has since moved away from its common law roots by enacting legislation to limit birthright citizenship, the U.S. remains bound by its written Constitution and the Supreme Court’s interpretation of its meaning.
Will Congress Wait for the Courts?
Given the legal vulnerability of the Birthright Citizenship Act, many lawmakers may opt to wait and see how the courts rule on Executive Order 14156. Legislating in this space before the judiciary rules could backfire, especially if the law is struck down and reaffirms Wong Kim Ark’s broad interpretation of the Citizenship Clause.
In reality, a reinterpretation of “subject to the jurisdiction” will likely come from the judiciary, not Congress. A legislative effort that contradicts over a century of settled precedent would probably be seen as an attempt to amend the Constitution through the back door—a task that Article V of the Constitution reserves for the formal amendment process.
Conclusion
While the executive order moves forward in litigation and is partially in effect depending on state-level court rulings, the Birthright Citizenship Act has emerged as a secondary front in the battle over the Fourteenth Amendment. However, its constitutional infirmities and political impracticality suggest that it may not advance.
Moreover, the meaning of ‘subject to the jurisdiction’ is currently being litigated in various federal courts. Given the likelihood that this issue will ultimately be decided by the Supreme Court, Congress is expected to hold back on pushing this legislation forward for now. The legislative branch will likely wait for judicial resolution before attempting any statutory changes to the Citizenship Clause.
Congress is more likely to allow the courts to resolve the fate of Executive Order 14156 and Birth Right Citizenship Act will not become a law.
About the Author
Discover more from Immigration Analytics
Subscribe to get the latest posts sent to your email.
