Birthright Citizenship: Every Baby Born Here Is One of Us

First Focus on Children filed an amicus brief in Trump v. Barbara. Here's what we told the Supreme Court.

Mar 12, 2026

First Focus on Children, in partnership with the Center on Law and Social Policy (CLASP) and others, filed an amicus brief in Trump v. Barbara (No. 25-365), urging the Supreme Court to affirm what the Fourteenth Amendment has guaranteed for over 157 years: that every baby born in the United States is a citizen and that President Trump’s Executive Order 14160 is unconstitutional.

As we argued to the Supreme Court:

In the United States, citizenship at birth is a fundamental right. By operation of the Fourteenth Amendment, every baby born within our borders claims citizenship equally, regardless of parentage, ethnic heritage, race, or any other factor.

Even though it is right there in the name – “birth” – policymakers and the media often ignore the critically important children’s angle to this and other policy issues. Children, and in this case, babies, are often treated as an afterthought.

For many years, we have been trying to make this point. This newsletter has made the case that birthright citizenship is a constitutional bedrock for babies and has covered the recent congressional hearings, the SCOTUS oral arguments on injunctions against President Trump’s Executive Order, the chaos that followed, and the bureaucratic nightmare that would be imposed on maternity wards and in the homes of every baby born across the country if President Trump’s executive fiat were to have its way.

Now, for the first time, the Supreme Court will rule on the merits of the Executive Order – on whether the President of the United States can unilaterally rewrite the Constitution’s Citizenship Clause with the stroke of a pen.

Along with our partners, First Focus on Children is arguing to the Supreme Court that the President cannot overturn this fundamental constitutional right for babies and children unilaterally. Doing so would do irreparable harm to the lives of hundreds of thousands, or even millions, of babies and children in the process.

The Heart of Our Argument: This Is a Children’s Case

The most important thing about our amicus brief – and about this case – is something the legal debate has consistently buried: the Fourteenth Amendment is about babies and children, not their parents.

The plain text could not be clearer. The Citizenship Clause reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

BORN. That is the operative word. Not descended. Not parentally sponsored. Not documented. BORN.

The constitutional subject is a baby, at the moment of birth, and on American soil.

Congress has affirmed this in the Civil Rights Act of 1866, in the Immigration Act of 1917, Nationality Act of 1940, and again in the Immigration and Nationality Act (INA) of 1952, which codified at 8 U.S.C. § 1401(a) that any person “born in the United States, and subject to the jurisdiction thereof” is a citizen at birth — without regard to the status of their parents. Numerous other laws, including eligibility for Medicaid, the Children’s Health Insurance Program (CHIP), SNAP, WIC, and the Affordable Care Act, are based upon the clear reading of the birthright citizenship clause in the Fourteenth Amendment.

Likewise, the executive branch has agreed to and reaffirmed this through more than a century of federal rules, regulations, and practice on matters such as the granting of passports and Social Security Numbers (SSNs).[1]

The Supreme Court has said the same thing, repeatedly. In United States v. Wong Kim Ark (1898), the Court held emphatically that the child of noncitizen parents born on American soil is a citizen – a rule it traced through a century of common law and congressional practice. That ruling has never been overturned. It has never been seriously questioned by the Court itself, which has also repeatedly reaffirmed it.[2]

Birthright citizenship has long been settled law.

President Trump’s executive order replaces all of this with something the Constitution and Congress never enacted: bloodright citizenship.

Under the order, a baby’s citizenship is contingent not on where they were born but on who their parents are: their immigration status, their documentation, and their lineage. As the First Circuit correctly held in Doe v. Trump, the Citizenship Clause focuses “on the child, not the parent.”

The Executive Order seeks to turn that constitutional logic exactly backwards.

The Supreme Court itself has called citizenship “the right to have rights.” In Perez v. Brownell (1958), the Court described statelessness with unmistakable clarity:

Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded….

The Supreme Court added:

Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so.

Yet, that is what the executive branch of the government is seeking to do – strip innocent babies who have done nothing wrong, violated no laws, and had no say in the circumstances of their birth of their fundamental right to citizenship bestowed upon them by the Constitution.

The Harm Is Real, Immediate, and Reaches Every Baby

Our brief, filed alongside the Center for Law and Social Policy (CLASP), Children Now, the Young Center for Immigrant Children’s Rights, and leading scholars and clinicians in child health and psychology, makes three core arguments on behalf of protecting America’s children.

First: every child born in the United States would be harmed – not just those directly targeted by the order.

Under the Executive Order, all babies would be required to produce documentation proving their citizenship or legal permanent resident status before their newborn could be recognized as a citizen. A birth certificate, which has been sufficient proof of citizenship for 157 years, would no longer suffice.

Babies who would be most exposed are identified in another amicus brief filed by Project Rousseau, a nonprofit organization helping young people reach their full potential. Their brief identifies the following types of children who would be most at risk:

Children conceived in rape. Over 11% of U.S. births nationwide are registered with an unknown father. For many of these children, the father is unknown because naming him would require a traumatized mother to contact her rapist — or worse, put herself and her child at risk. Federal law already recognizes that it is not in the best interest of a child conceived in rape to compel paternity establishment. Executive Order 14160 would force that impossible choice anyway: contact your rapist to document his citizenship status, or your baby may not be recognized as an American.
Children of abusive fathers. A mother separated from a legal spouse who refuses to divorce her — for religious, cultural, or family reasons — cannot simply list her new partner, even if he is a U.S. citizen, as the child’s legal father. In all fifty states, a legal spouse is presumed to be the father on a birth certificate. Under Trump’s EO, that child’s birthright citizenship could be called into question through no fault of the mother, the child, or the biological father.
Children given up for adoption. Safe Haven laws – now in effect in all fifty states – allow parents to surrender a newborn anonymously, without documenting identity or parentage. At least thirteen states produce birth certificates that list no parents at all. These children, by law and by design, have no documented parentage. Under the Executive Order, they cannot prove the citizenship of parents whose identities the law was specifically designed to protect. Children who are already the most vulnerable, abandoned in their first hours of life, would be stripped of the citizenship they are owed.
Children born to Amish and Mennonite families. These longstanding religious communities have for generations chosen not to obtain birth certificates for their children. Under current law, they can demonstrate citizenship through established alternative procedures. Under Executive Order 14160, they would face an impossible constitutional conflict: a choice between their First Amendment right to free exercise and their Fourteenth Amendment right to birthright citizenship. They cannot honor both.
Children born through IVF, surrogacy, or to same-sex parents. The Executive Order defines “mother” as “immediate female biological progenitor” and “father” as “immediate male biological progenitor” – leaving entirely unresolved what happens to children born through assisted technology, surrogacy arrangements, or to families that do not fit into that narrow biological template. The EO provides no answer for their children.

To some, this may sound like a paperwork issue. It is not. Nearly 21 million American adults lack ready access to the documents this order would require. The consequences of failure are not administrative delays. They are the denial of Medicaid, CHIP, SNAP, WIC, the Child Tax Credit, and every other benefit that allows babies to survive and thrive in their first days, weeks, and months of life. The Administration, when asked before the Supreme Court how any of this would work, admitted the government “does not know.”

As Marquette law professor Jacob Hamburger has observed:

If U.S. birth certificates and passports [because they have relied on birth certificates] no longer qualify as primary evidence of citizenship, few other documents could easily take their place. Since Social Security cards are also issued to work-authorized noncitizens, for example, a parent’s card could not count as proof of U.S. citizenship. Ironically, the Trump administration’s birthright citizenship policies could create an advantage for naturalized citizens, who are much more likely than those born in the United States to possess other documents – such as a certificate of naturalization – that would definitively establish their citizenship.[3]

Furthermore, for those following the debates over voting rights, eliminating birthright citizenship would logically remove birth certificates as a form of documentation to prove citizenship when registering to vote, even though it is cited as one of the main forms of identity to be used in the SAVE Act that the Administration is promoting.

Second: the health consequences begin before birth and compound for a lifetime.

The threat of ending birthright citizenship is already driving immigrant mothers away from prenatal care and hospital deliveries. Research cited in our brief shows that hostile immigration policies cause delayed and inadequate prenatal care among immigrant mothers and that the chilling effect extends to vaccinations, early health screenings, and basic maternal care. Home births, which carry unique risks for high-risk pregnancies, rise in direct response to this fear.

As our co-amicus Dr. Lisa Fortuna’s research demonstrates, the psychological toll of living under constant immigration enforcement threat is “not only acute, but chronic, layered, and developmental” – dysregulating children’s developing brains, elevating cortisol levels, and causing lasting impairments in emotional regulation, memory, and cognitive development. It significantly heightens the threat of exploitation of these children.

Another consequence that deserves attention and that cuts across political lines: the Executive Order threatens to undermine the legal foundation for the From-Conception-to-the-End-of-Pregnancy (FCEP) rule or “unborn child” option in the Children’s Health Insurance Program (CHIP). That option, which extends CHIP coverage for prenatal care regardless of the citizenship of the mother because the fetus is assumed to become a U.S. citizen at birth, has been actively supported by conservative, pro-life, and pro-family groups since its creation during the Bush Administration.

If birthright citizenship is gutted, the constitutional logic underpinning that prenatal coverage evaporates with it. This Administration, which claims to be pro-life, cannot simultaneously champion prenatal care for unborn children and strip the citizenship that makes that coverage legally possible. They would be gutting this provision, which would curtail prenatal care and increase both infant and maternal mortality.

Third: many babies would be rendered stateless with nowhere to go.

Children born to parents from nations that do not recognize citizenship by descent would find themselves without any nationality at all. No federal law defines or protects stateless persons in the United States. These children would face detention, potential deportation to countries they have never known, and a lifetime of institutional exclusion for reasons entirely beyond their control.

Prof. Amanda Frost: The Consequences for Every American Child and Every Family, Now and Forever

On March 10, the Senate Judiciary Subcommittee on the Constitution held a hearing titled “Protecting American Citizenship: Birthright Citizenship for Illegal Aliens and Tourists” – a framing that tells you something about how the hearing approached the issue. The session was largely a political exercise, with one significant exception.

University of Virginia law professor Amanda Frost delivered a clear and devastating account of what the Executive Order would actually mean for every American child and family, now and across generations. She testified:

If the Trump Administration were to succeed in rewriting the Constitution, the consequences would be dire for all families in the United States.
At a minimum, children born after the Executive Order goes into effect to legal temporary immigrants as well as undocumented immigrants – approximately 250,000 children every year – would be rendered “illegal aliens” from the moment of their birth. The Executive Order instructs federal agencies to deny these children social security numbers, access to federal benefits reserved for citizens, and passports. Some would be born stateless. If these children left the country with their parents, they would be barred from returning even if their parents have a legal right to re-enter the United States. By law, these newborns would be subject to removal from the country and their families from the moment of birth.
Nor would the harm be limited to the families targeted in the Executive Order. All families – including those in which one or both parents are green card holders or U.S. citizens – would have to provide “acceptable evidence” of their own status “at the time of said person’s birth” before their child would be recognized as a U.S. citizen. And this would not be easy.

🎥 VIDEO: Professor Amanda Frost on the Consequences of EO 14160 for All Americans

Beyond the documentation trap, the question arises as to what political tests might future administrations use to assess that lineage and convey citizenship.

We are already seeing the answer take shape. This Administration has created a “Gold Card” – a $5 million path to citizenship for wealthy foreign investors. It has fast-tracked refugee status for Afrikaners from South Africa while denying it to Black and brown asylum seekers from other parts of the world.

Citizenship, under this Administration, is increasingly a commodity: purchasable for the wealthy, preferentially granted by racial and national origin.

In contrast, he threatens to interrogate and even deport babies and children who were born here, raised here, learned the Pledge of Allegiance here, sang the National Anthem here, and were taught in American schools that the Constitution makes them equal.

The Fourteenth Amendment speaks to being “born” and not a citizenship framework built on lineage, wealth, and race. The framers of the post-Civil War amendments knew exactly what they are doing when they chose “born” over “descended.” They were rejecting, once and for all, the notion that citizenship should be based on a matter of ancestry.

As Frost concludes:

The United States would have replaced the egalitarian rule that we are all American at birth with a test of lineage and ancestry – a legal rule at odds with our Constitution and antithetical to the nation’s founding values.

What Congress Has Said, Repeatedly

The amicus brief filed by 217 Members of Congress to this case makes a point that also deserves wider attention: even if the Supreme Court were to do an about-face and completely overturn over a century of precedent regarding the interpretation of the constitutional provision, the President still cannot prevail here because Congress has repeatedly and explicitly enacted birthright citizenship into statutory law.

For example, the Nationality Act of 1940 codifies that it is “the fact of birth within the territory and jurisdiction, and not the domicile of the parents, which determines the nationality of the child.” The record from those debates makes clear that this was not an ambiguous choice. When the hypothetical was posed about the birth of a child to a couple visiting the United States, the answer was clear, from witnesses and members alike, that the child is an American citizen.

Furthermore, the Immigration and Nationality Act (INA) of 1952 is so thoroughly built around birthright citizenship that the congressional amicus demonstrates it would become structurally incoherent without it – provisions governing asylum derivatives, hardship-based deportation cancellations, and immediate relative petitions all presuppose that children born here to noncitizen parents are citizens.

And last, for more than thirty years – in nearly every Congress since 1997 – opponents of birthright citizenship have introduced bills to amend the INA and end the jus soli rule. More than twenty-five bills. Every single one has failed. That is not a legal technicality. That is democracy. Congress has considered this question repeatedly, deliberately, and has consistently refused to change the law.

What the President is attempting to do with Executive Order 14160 is accomplish by executive fiat what he could never accomplish through the constitutional process of legislation.

A Coalition Speaking for Children

Our amicus brief was joined by some of the most respected voices in child health, child rights, and child welfare in the country: CLASP, Children Now, the Young Center for Immigrant Children’s Rights, Dr. Lisa Fortuna (UC Riverside), Dr. Hector Adames (The Chicago School), Dr. Nayeli Y. Chavez-Dueñas (The Chicago School), Warren Binford (CU Anschutz), and Dr. Maryam Jernigan-Noesi (Jernigan & Associates). The brief was authored by Mary Kelly Persyn of Persyn Law & Policy, who served as counsel of record.

Together, we told the Supreme Court what we have been saying here since before this executive order was signed: this is not an immigration case. It is a children’s case. The Fourteenth Amendment’s focus is on the child. The best interests of children must remain at the forefront. And the harm this order would inflict on babies – on all babies born in the United States – is immediate, irreparable, and real.

In a separate brief filed by the U.S. Conference of Catholic Bishops and Catholic Legal Immigration Network, they add:

Children do nothing wrong by being born in the United States. Yet, this Executive Order renders them stateless. Depriving an innocent child of his citizenship based upon his parents’ immigration status would be an especially outrageous punishment – one that this Court has rejected as punishment even for people who have been proven guilty.[4]

What the Court Must Do

The Constitution uses the word “born.” Not “descended.” Not “lineage-verified.” Born.

Congress has codified that word into statute repeatedly across 160 years of American history. The Supreme Court has frequently affirmed it. Twenty-five bills to undo it have failed to pass. And every court to have reviewed Executive Order 14160 has found it unconstitutional.

The children who grow up in this country – who pledge allegiance to its flag, learn its national anthem, study its Constitution, and call it home – are Americans. Not because of who their parents are. Not because of what their parents could afford. Because they were born here.

Born here. One of us.

That is what the Constitution says. That is what it has said for 157 years. That is what First Focus on Children will keep fighting to protect.

What You Can Do:

Share this post to spread awareness about how this policy threatens children.
Contact your elected officials to urge them to oppose S. 304/H.R. 569 (the Birthright Citizenship Act) and S. 2274 (the Constitutional Citizenship Clarification Act), and to support S. 646/H.R. 3368 (the Born in the U.S.A. Act).
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