Birthright Citizenship – jus soli – is a legal concept suggesting that a person is a citizen of the soil on which they are born.
American Citizenship is encapsulated in Section 1 of the 14th Amendment of the Constitution. The amendment states that all persons born or naturalized in the United States, and subject to the jurisdiction of the US are citizens, allowed to enjoy all the rights and privileges of American Citizenship. The 14th Amendment was ratified on July 9, 1868. It was considered a radical political event, granting citizenship to all people who were born or naturalized in the country, most notably, formerly enslaved Americans. This citizenship not only provided a home but also provided equal protection under the law. However, to fully understand the gravity of the 14th Amendment, you have to go back before the American Civil War.
In the 1800s, slavery is rampant throughout the American south. Primarily northern states have abolished slave practice, and any new territories acquired by the United States take turns in allowing slavery to take place. It is important to note that the United States had banned importing enslaved people by 1808, but this did not stop the practice of slavery. Any individual who was born to an enslaved person (a Black American) was not considered a citizen. That child was also considered enslaved and would not have any right as an American citizen.
Enter Dred Scott. In 1846, Dred Scott and his wife Harriet sued for their and their children’s freedom. Though Dred Scott and his wife were originally from Missouri, a state where slavery was legal, they had been living in Wisconsin (a free state) with their enslaver for years. In their freedom suit, Dred Scott states that because they had been living in Wisconsin for years, they were now Wisconsin citizens and therefore free. This was not a revolutionary idea, in fact the Scott Family’s claim was just one of many similar claims across the country, which were oftentimes granted. The case (Scott v. Sandford, commonly known as just Dred Scott) after nearly 11 years eventually went to the Supreme Court. The Supreme Court in 1857 ruled that enslaved Black Americans were not citizens of either the United States or the state in which they reside; therefore, they have no legal protections. The reasoning is based on the thought that Black Americans were not considered individual people when the constitution was written but rather considered property. Black Americans were not entitled to certain rights, and they could not sue for their freedom. The Dred Scott decision is often credited as the final push that led the United States to the Civil War. Though Dred Scott would not live to see slavery be abolished, the Dred Scott decision would finally be overturned by the 13th and 14th Amendments.
The 13th and 14th Amendments accomplish two things; 1) Abolishes slavery on a federal level and 2) Affirms that every person born in the United States, regardless of race, religion, economic status etc. is a citizen and has the rights outlined in our constitution. The 14th amendment has long been interpreted to apply to every baby born in the US, with limited exceptions such as children born to foreign diplomats
So, what does this have to do with the Executive Orders? On January 20, 2025, President Trump signed the Executive Order named, ‘Protecting the Meaning and Value of American Citizenship’ (PMVAC). The order begins by saying that though the 14th Amendment rightly overturned Dred Scott, it was never meant to extend citizenship universally to everyone born in the United States. PMVAC states that the 14th Amendment excludes those who were ‘born in the United States but not subject to the jurisdiction thereof’. In affect PMVAC distinguishes who is not subject to the jurisdiction of the United States. Under PMVAC, a child born in the United States will not be considered a US Citizen if at the time of birth 1) the biological mother did not have any legal status in the United States and 2) the father was not a US Citizen or a Legal Permanent Resident or 1) biological mother only had temporary status and 2) dad was neither a US Citizen or Legal Permanent Resident. These criterions will affect children who are born 30 days after enactment (February 19, 2025).
What does that mean? Let’s say your family is expecting a child, and the due date is March 1, after the enactment date. If mom has no status (undocumented) at the time of birth, and dad is not a citizen or a resident at the time of birth, the new baby will not be considered a US Citizen, even if they are born in the US. That child will have no status.
Or let’s say mom does have a visa, but it is only a temporary visa (i.e. a student, investor, or tourist visa). If the mom only has a temporary visa at the time of birth, and dad is not a US citizen or doesn’t have a green card at the time of birth, the new baby will not be a US citizen even if they are born in the US. That child will have no status either.
In short, for a baby born in the US to be considered a citizen, at minimum, both mom and dad need to have a green card at the time of birth. If not that child will have to apply for legal status as well, the parents would not be able to have their child petition for them once the child turned 21. An important thing to remember though, is that this is not retroactive, this law only affects children who are born after February 19, 2025.
But there’s a catch. On February 6, 2025, a federal judge issued a preliminary injunction to block PMVAC. A preliminary injunction is a hold on an action or rule, as it cannot be enforced until the conclusion of a court case. Regarding PMVAC, there are currently 9 federal lawsuits challenging the executive order, and this preliminary injunction puts a hold on PMVAC until a decision has been made in the courts. As of now, the executive order is not effective, any child born in the states right now will still be considered a United States citizen.
These cases can often last a while so right now, there is nothing to do. For those pregnant and without status, it’s a good idea to contact an attorney to get more information on family petitions, and what is the best course of action for your family. For more information and to schedule a consultation with the attorney, please contact us at (239) 800-0580 or send us a message today.
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