After the Supreme Court’s Ruling, What Are US Birthright Citizenship Rules Now?

Their opinions closely referenced a 1898 Supreme Court ruling in a case involving a San Francisco-born man, Wong Kim Ark, which decided that the 14th Amendment also included the children of immigrants, regardless of their parents’ origin.

“Citizenship, then and now, was the right to have rights — to freely participate in our political community, ” Chief Justice John Roberts wrote for the court’s majority on Tuesday. “We keep that promise today.”

• Jump straight to: Could Trump try again to change birthright citizenship?

Keep reading for what to know about birthright citizenship in the U.S. right now — especially if you’re planning on having a baby.

What should parents know about US birthright citizenship rules?

On his first day back in the White House, Trump signed an executive order blocking automatic U.S. citizenship not just for children born to undocumented immigrants, but to all newborns who do not have at least one parent who is a U.S. citizen or legal permanent resident. In its case briefs, the administration argued that these children are not “subject to the United States’ jurisdiction and therefore not entitled to birthright citizenship.”

But that order has now been declared unconstitutional by the highest court in the land, said UC Davis law professor Gabriel “Jack” Chin.

“Are the children of undocumented immigrants U.S. citizens? Yes,” he said. “Are the children of temporary immigrants U.S. citizens? Yes.”

“Every child born in the United States is a U.S. citizen,” he said, with very narrow exceptions for children of diplomats or of an invading military.

Trump has claimed multiple times that the U.S. is the “only country in the world” that grants citizenship automatically if a baby is born on its soil. But that is an exaggeration, UC Law professor Ming Chen said.

While it’s true many European and Asian nations base a child’s citizenship on their parents’ origin — a policy called jus sanguis in Latin — Chen points out that there’s a historical reason why the U.S. and other countries in the Western Hemisphere have adopted jus solis instead — basing citizenship on where a baby is born.

“The countries of the ‘New World’ tend to use jus solis precisely because they want to encourage migration and growth of their nation,” she said. “This original purpose and interpretation are directly relevant for a place like California that has so many immigrants who have come to the U.S. to settle down and make a life.”

Expecting a baby? Get their birth certificate — and keep it safe

If immigrant parents are expecting a baby soon, they won’t need to worry about Trump’s executive order after Tuesday’s Supreme Court ruling, Chin said. But, he added, it’s still important for parents to confirm that they receive a birth certificate when their baby is born, to prove in the future that their child was born in the U.S.

“With [current] immigration enforcement that’s often based on race, every individual has to be prepared — particularly non-white individuals — to prove that they are U.S. citizens,” he said. Receiving a birth certificate is standard routine in hospital births, but Chin said that once parents have this document, “hang on to it.”

Several Bay Area immigration law experts KQED spoke with agreed with Chin’s recommendation.

Lourdes Martínez, co-director of the immigrants rights program at Oakland’s Centro Legal de la Raza, pointed out that some parents without a legal immigration status may be thinking about returning to their country of origin in response to other restrictive immigration policies by the Trump administration.

If that’s what parents are planning, Martínez recommended they should be familiar with the rights that their U.S.-born children have if they leave the country with them.

“Citizens always retain the ability to return to the U.S. and to live here,” she said, pointing out that keeping a child’s birth certificate safe will protect their claim to U.S. citizenship in the future. “There’s a very strong message of belonging to this nation.”

And even if parents don’t have a clear path to U.S. citizenship, Martínez added they can talk with their children about what it means to be a citizen of a nation. In the U.S., that includes the right to vote in elections once a person turns 18 and the obligation to serve on a jury when called upon. Men — both citizens and most non-citizens — must also sign up for the Selective Service between the ages of 18-25.

“This court has reaffirmed a fundamental constitutional principle that birthright citizenship is not subject to political wins or executive overreach,” Martínez said. “It’s based on the principle that a person’s citizenship should come from their place of birth in the United States and not from their parents.”

Can Trump still try to change birthright citizenship?

A few hours after the Supreme Court’s decision, Trump celebrated on Truth Social that the justices had sided with him in other legal battles, while adding: “We also had the Birthright Citizenship loss, which we will work to correct in Congress.”

While Justice Brett Kavanaugh ended up agreeing with the court’s ruling, he wrote a separate opinion arguing that Trump’s executive order violated a federal statute which grants immigrants’ children citizenship, but that it didn’t violate the Constitution — suggesting birthright citizenship might not be guaranteed.

Congress “could amend” that law, Kavanaugh wrote, “or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But,” he said, “Congress has not yet done so.”

But as Chin from UC Davis stressed, the court’s majority explicitly affirmed that the 14th Amendment protects birthright citizenship. And regular legislation from Congress cannot overrule the Constitution, he said.

“This is a constitutional decision,” Chin said. “They can propose a constitutional amendment, but the chances that it would pass are very low.”

Any amendment to the Constitution would require the votes of two-thirds of both the Senate and the House of Representatives, along with the approval of three-fourths of state governments — that’s at least 37 out of the 50 states voting in favor of the change.

Republicans currently have complete control over 29 state legislatures, still far below what they need. And Democrats have made it clear that they are not interested in limiting birthright citizenship.

“Birthright citizenship as a legal matter is over. As a political matter, maybe not,” Chin said, adding that the Trump administration remains committed to a restrictive immigration agenda.

But this ruling is still a relief for many immigrant parents, Huy Tran, executive director of the San José-based SIREN Immigrant Rights, said. “If you are expecting, focus on your family,” he said. “Focus on giving birth.”

And if parents do not have a legal immigration status at the moment, Tran recommended that they should still plan for an immigration enforcement operation that could split up their family.

That includes, he added, learning how to accurately identify officers from agencies like Immigration and Customs Enforcement and reporting any sightings to a local rapid response network — volunteers who work around the clock to verify possible ICE activity.

“If there are folks who have any questions about their status or need some legal help, call your rapid response network,” Tran said.

Rapid response networks in the Bay Area:

Alameda County Immigration Legal and Education Partnership: 510-241-4011

Marin County: 415-991-4545

San Francisco: 415-200-1548

San Mateo County: 203-666-4472

Santa Clara County: 408-290-1144

Stand Together Contra Costa: 925-900-5151

Napa, Sonoma and Solano counties: 707-800-4544