Citizenship by Zip Code: The Latest Attack on Birthright Citizenship
On January 20, 2025, President Donald Trump issued Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship,” attempting to deny automatic U.S. citizenship to children born on American soil unless at least one parent is a U.S. citizen or lawful permanent resident. This directive directly challenges the Fourteenth Amendment's Citizenship Clause, which has, for over 125 years, guaranteed citizenship to nearly all individuals born in the United States.
Rather than confronting the constitutionality of this order directly, the Trump Administration asked the Supreme Court to narrow the scope of judicial review in oral arguments heard last week — focusing on trying to restrict the use of nationwide injunctions that have blocked the order from taking effect. This legal maneuver wasn't just a procedural tactic: it was a strategy that risked tearing at the fabric of equal citizenship by creating a fragmented system where a child’s citizenship status could vary from state to state.
Citizenship by zip code would be a colossal disaster and is exactly the kind of situation that the Supreme Court was seeking to avoid with the Fourteenth Amendment’s Citizenship Clause and Equal Protection Clause.
The Patchwork Threat to Citizenship
During Supreme Court oral arguments on May 15, 2025, New Jersey Solicitor General Jeremy Feigenbaum highlighted just how perilous this fragmented approach would be (although predominately from the perspective of states). He argued that if Trump’s executive order were allowed to take effect in some states but not others, New Jersey could soon face absurd and chaotic questions about the legal status of babies who move across state lines. Would a baby born in Florida be considered a non-citizen while a baby born minutes later in New Jersey is a citizen? Could a child’s constitutional rights change with changes to a child’s zip code?
Solicitor General Feigenbaum explained:
Since the Fourteenth Amendment, our country has never allowed American citizenship to vary based on the state in which someone resides because the post-Civil War nation wrote into the Constitution that citizens of the United States and of the states would be one and the same without variation across state lines.
Here is part of that discussion during oral arguments before the Supreme Court:
Without uniform protections, children would be left in legal limbo, with their futures subject to the accident of birthplace geography and movement across state lines. The absurdity, lack of practicality, and absence of forethought as to how any of this would operate was exposed before the Supreme Court.
With birth certificates rendered meaningless in some states but as verification in others, children in the latter states would have their citizenship status put in limbo, and their parents would have to submit evidence and paperwork to attempt to get a bureaucrat somewhere, somehow to certify their children as a citizen. How would any of this work? How would the citizenship status of parents be determined? What about cases involving surrogacy, IVF, or questions about paternity?
Under questioning by Justice Brett Kavanaugh, U.S. Solicitor General John Sauer had to acknowledge that the Administration “does not know” how any of this would be implemented for either the states or the 3.6 million babies born across the country every year.
Here is that exchange:
Professor Amanda Frost concludes:
With this one exchange, Sauer inadvertently revealed why nationwide injunctions are at times the only way to protect the public. The administration has no workable plan for its unconstitutional order, yet it wants to take away the best legal pathway for those affected to challenge the government’s action.
A Right for Babies: What Many Seem to Be Missing
What’s been both stunning, and frankly, distressing about much of the legal and political debate surrounding this case is how rarely the actual subject of the Fourteenth Amendment’s guarantee is mentioned: BABIES.
The 14th Amendment promises citizenship to “all persons born...in the United States, and subject to the jurisdiction thereof.” That is not a vague or incidental phrase. It was written in the wake of the Civil War precisely to ensure that no future Congress, president, or state official could deny full membership in the American community to a child born on U.S. soil.
Babies, whether their parents are documented or undocumented, wealthy or poor, settled or recently arrived, were granted the fundamental right of citizenship by the Constitution. And yet, with the exception of Justices Sonia Sotomayor and Elena Kagan during oral arguments and Professor Amanda Frost in her clarifying congressional testimony, this truth has been persistently overlooked.
In The Atlantic, Frost adds:
That order is at odds with the clear text of the Fourteenth Amendment, the original understanding, long-standing judicial interpretation, and multiple federal statutes. And it would destabilize the citizenship of many of the 3.6 million babies born, on average, in the United States every year—including those born to U.S. citizens. According to the executive order, a birth certificate alone would no longer demonstrate citizenship. All of those parents would have to somehow prove their own citizenship or immigration status before their child could be recognized as a citizen. Additionally, even babies born to lawful temporary immigrants — including temporary workers and students who have been living in the United States for years — would be denied citizenship, losing access to Medicaid, SNAP, and other federal and state benefits. Those children would be born undocumented, some stateless, all at risk of being deported on the first day of their life.
In Frost’s conversation with Slate’s Dahlia Lithwick on the Amicus podcast, she reminded us of something essential:
We have a provision in our Constitution that rejects the idea of corruption of blood, meaning that we don’t punish the child for the sins of the parent. And I think that is uniquely and so importantly American. Each generation starts anew, equal with everyone else — we don’t look to your parents’ status or title to decide your merit. That’s one of the great values of our society. It’s something that has made our nation strong.
That’s not just a beautiful sentiment. That’s constitutional doctrine.
Frost adds:
The meaning of American is: If you’re born here, you are one of us. And I love that definition. That’s what the Reconstruction Congress wanted, and I hope that’s what we come to embrace as a nation after this fraught moment.
So why is it being ignored by the Administration and so many others? Why have so many commentators, legal analysts, and even some justices sidestepped the core question about the fundamental rights that babies have been granted in the Constitution?
The proponents of the Administration’s executive order seeking to gut birthright citizenship are the same voices arguing in favor of pro-life and pronatalist policies. These positions are accompanied by claims that our country needs to be in favor of the rights of the unborn and that society needs more births to continue to flourish.
Trump supporters are simultaneously in favor of including the “unborn” (otherwise known as the “from-conception-to-end-of-pregnancy” or FCEP option) in the Children’s Health Insurance Program’s (CHIP) definition of a “child”, which results in health care coverage for undocumented pregnant women.
But in denying automatic citizenship to the newborn, they are seeking to deny all children access to health care (Medicaid and CHIP), nutrition, child care, and the Child Tax Credit at least temporarily, and in cases, such as the 4.5 million U.S. citizen children living in mixed-status households, permanently.
Source: Marshall Ramsey, “Life After Birth,” Mississippi Today, Jun. 26, 2022.
For those kids failing to obtain the approval of some unknown bureaucrat and unknown process, they would be stripped of citizenship and the constant fear of either deportation or a lifetime of potential exploitation in the shadows of society.
It is important to emphasize that these babies did nothing wrong and violated no laws. Some were born as a consequence of restrictive laws on birth control and a recent Supreme Court decision that overturned Roe v. Wade – both actively promoted by this Administration.
Such laws and judicial decisions could be characterized as being pro-birth, but paired with a denial of birthright citizenship, the policy is clearly and distinctly anti-child.
The vivid contrast of the Trump Administration’s recruitment and active importation of white Afrikaners and their babies and the turbo pathway to citizenship for millionaires and their families living abroad is stark compared to the Administration’s policy for babies who are born in the USA and who know no other place as their home.
While the New Jersey lead attorney’s argument about the struggles such a policy would impose upon states is an important one, it was still shocking that the harm to babies was largely ignored in the arguments made by all sides before the Supreme Court.
Instead, the Supreme Court hearing was largely overtaken by debate over executive privilege, congressional purview, judicial review, district court actions, administrative details, federalism, immigration policy, and jurisdictional technicalities. Those issues certainly have merit, but quite frankly, they are not the heart of the question of the citizenship rights of babies and the future of our country.
What is most disturbing to me is that, whatever your thoughts on abortion, IVF, birth control, natalism, immigration policy, federalism, or the roles of executive, congressional, and judicial power, it is tragic that we can’t all agree that neglecting and harming babies should be universally considered unthinkable and unacceptable.
The heart of questions related to birthright citizenship is whether we, as a nation, still recognize the humanity, dignity, and fundamental rights of every child born here or not.
How is this even a debate at all?
A Constitutional Bedrock Under Siege
The Fourteenth Amendment's Citizenship Clause was designed to ensure that individuals born in the United States are granted citizenship, regardless of their parents' status. This principle was reaffirmed in the landmark 1898 Supreme Court case United States v. Wong Kim Ark, which ruled that, with rare exceptions, children born in the U.S. are citizens.
The Trump Administration’s order represents not only a direct challenge to this precedent, but an ideological assault on one of the most powerful symbols of American democracy: the idea that everyone born here is, as Professor Frost said, “one of us.”
And perhaps more dangerously, the Administration sought to do this not by convincing the Court to overturn Wong Kim Ark, but by stripping federal courts of their power to block an unconstitutional executive order nationwide, which would bypass meaningful scrutiny and make it harder for affected families to seek relief.
Justice Sotomayor highlighted this constitutional affront for what it is. She pointedly noted that the order violates long-established Supreme Court precedents, at least four of them, and appears designed to avoid judicial review. It was a stark reminder that in times of political expedience, even the well-being and rights of babies can be up for grabs.
A Call to Embrace What It Means to Be American
At its core, this is not just a legal fight: it’s a fight over who we are as a country.
The meaning of American is, as Professor Frost put it, “if you’re born here, you are one of us.” That’s what the Reconstruction Congress intended when it ratified the Fourteenth Amendment. That’s what has made this nation unique in the world and able to integrate generation after generation of immigrants and their children more successfully than any other country.
The American people agree. A Lake Research Partners poll from April 2-7, 2025, finds that registered voters support “maintaining the right to birthright citizenship for all children born in the United States” by more than a two-to-one margin (62-30%, including 51% who strongly support it).
We should not lose sight of that in the fog of legal maneuvering and political calculation. We are talking about babies born here, crying their first breaths under the same sky as all of us, just as vulnerable, just as worthy, and frankly, more in need of protection.
To deny them citizenship is to deny our nation’s promise.
Let’s not let that happen.
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