Beyond the President’s Reach: Birthright Citizenship, the Fourteenth Amendment, and the Limits of Executive Power

Introduction

The Fourteenth Amendment’s Citizenship Clause provides that “[a]ll 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.” U.S. Const. amend. XIV, § 1. For over 150 years, this provision has anchored a stable, universally applied rule of national membership. In 2025, Executive Order 14160 instructed federal agencies to deny recognition of citizenship to certain U.S.-born children—challenging a constitutional guarantee forged in the aftermath of the Civil War. This article traces the development of the birthright citizenship rule in American law, legislative history, and judicial precedent, and explains why both the constitutional text and long-standing stare decisis render EO 14160 invalid.

From Dred Scott to Universal Citizenship: The Civil Rights Act of 1866

Before the Civil War, citizenship was fragmented among state laws, and the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), excluded Black Americans from the national community. In response, Congress enacted the Civil Rights Act of 1866, announcing:

“All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27.

Congressional debates made clear the law’s intent to establish a national, objective principle of citizenship based on birth within U.S. territory. Lawmakers saw this as a critical step toward eradicating racial exclusion and preventing states or future officials from manipulating citizenship’s boundaries. Rep. James F. Wilson (R-Iowa) described it as a rule of “universal application,” meant to close the door on discrimination of any kind.

President Johnson’s Veto and Congress’s Deliberate Response

President Andrew Johnson (D-Tennessee) vetoed the Act with a message that explicitly recognized—and objected to—its universal scope:

“This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks... Every individual of these races born in the United States is by the bill made a citizen of the United States.” Veto Message, President Andrew Johnson, Mar. 27, 1866.

Johnson objected that such a rule extended citizenship not just to newly freed Black Americans but to immigrant children and groups “heretofore excluded,” overriding state sovereignty and imposing a sweeping federal guarantee. Congressional debates following the veto did not close these loopholes or seek compromise. Instead, Congress doubled down, with Rep. William Lawrence (R-Ohio) emphasizing:

“Every citizen... has the absolute right to live, the right of personal security, personal liberty, and the right to acquire and enjoy property. These are rights of citizenship.” CONG. GLOBE, 39th Cong., 1st Sess. 1836 (1866).

By overriding Johnson’s veto on April 9, 1866, Congress established not just a policy, but an enduring principle: citizenship by birth was to be protected against political or executive reversal.

Making Citizenship Immutable: The Fourteenth Amendment’s Design and Debates

The limitations of mere statute drove Congress to constitutionalize birthright citizenship. Rep. Thaddeus Stevens (R-Pa.) precisely captured the intent: to “lift [this] great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party.” CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866).

Senate debates foregrounded the Clause’s anticipated reach. Sen. Edgar Cowan (R-Pa.) questioned if it would “naturaliz[e] the children of Chinese and Gypsies.” Sen. John Conness (R-Cal.) replied forthrightly: “I am in favor of doing so.” Sen. Lyman Trumbull (R-Ill.) summed it up: “The child of an Asiatic is just as much a citizen as the child of a European.” The only exceptions articulated by Sen. Jacob Howard (R-Mich.) concerned diplomats’ children and hostile armies; all others born in the U.S. would be citizens. No narrower proposal, including any based on parental status, was adopted.

These debates affirm that the Amendment’s scope was understood, aired, and deliberately fixed: Congress intended to insulate the citizenship guarantee from all future political or executive tinkering.

Judicial Construction: Settling the Modern Rule

The Supreme Court’s decision in United States v. Wong Kim Ark, 169 U.S. 649 (1898), directly analyzed both the constitutional text and legislative history. The Court concluded:

“Every child born in the United States of alien parents was a natural-born [citizen], unless the child of an ambassador... or of an alien enemy in hostile occupation...” Id. at 693.

This holding confirmed the central principle of jus soli—citizenship by place of birth—with only narrow defined exceptions. Wong Kim Ark has been reaffirmed ever since, including in Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982): “the Fourteenth Amendment extends to all persons born within the territory of the United States, with only a few exceptions...”

Stare Decisis: Why Precedent Makes Birthright Citizenship Especially Secure

The enduring force of the Supreme Court’s construction is strengthened by stare decisis, the legal principle that courts should adhere to well-settled precedent. In Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989), the Court made clear:

“Stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion.’ ... [It] ensures that ‘the law will not merely change erratically’ and ‘permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.’ … Although precedents are not sacrosanct and may be overruled in rare circumstances, ‘any departure from the doctrine of stare decisis demands special justification.’”

Within constitutional law, this standard is even more exacting: only the Supreme Court or a constitutional amendment can overturn a constitutional precedent, and the burden for doing so is exceptionally high. Since Wong Kim Ark and its progeny have not been undermined by statutory, factual, or doctrinal evolution, the Constitution’s rule of birthright citizenship—articulated once and confirmed repeatedly—receives heightened judicial protection from policy or executive-driven attempts to revise it.

Why Congress Placed Citizenship Beyond Political or Executive Reach

The self-executing, constitutionalic character of the Citizenship Clause was adopted to shield national membership from fluctuating politics or administrative whim. As Rep. John Bingham (R-Ohio) explained:

“I want [these rights] secured by a constitutional amendment that legislation cannot override... Place these guarantees in the Constitution... so they cannot be stripped from us by any accident...” CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866).

This design reflects a structural judgment: the most fundamental rules of inclusion cannot rest on the will of any one branch or officer.

Modern Restrictionist Arguments, EO 14160, and the Consistency Problem

Executive Order 14160 attempts to deny citizenship to children born in the U.S. to mothers who are undocumented or temporarily present and fathers who are neither citizens nor permanent residents. Exec. Order No. 14160, 90 Fed. Reg. 2784, §§ 1–2 (Jan. 29, 2025).

Recent public arguments from President Trump and certain officials have claimed the Fourteenth Amendment was only ever intended for the “babies of slaves,” not as a universal rule. Such a view is not only in direct tension with the Clause’s historically recognized scope—even openly acknowledged by its 19th-century opponents like Johnson—but also sits uneasily with genuine principles of textualism and originalism. Attempts to remake the Clause as a narrow, remedial provision ignore its original meaning, explicit legislative debates, and the binding authority of Supreme Court precedent—contradicting the very interpretive approach relied upon elsewhere by proponents of such policies.

Executive Overreach and the Separation of Constitutional Powers

The United States Constitution carefully divides authority over citizenship and naturalization. Congress is vested with the legislative power “to establish an uniform Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, giving it exclusive control over who may become a citizen by law. However, for all those born within the United States, the Fourteenth Amendment makes the guarantee of birthright citizenship direct, automatic, and self-executing—requiring neither congressional implementation nor executive interpretation.

Under Article II, the President’s duty is to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, not to define or change constitutional requirements. As the Supreme Court made clear in Youngstown Sheet & Tube Co. v. Sawyer, “[t]he President’s power, if any, to issue an order must stem either from an act of Congress or from the Constitution itself.” 343 U.S. 579, 585 (1952). In the case of birthright citizenship, both the constitutional text and judicial precedent leave no open field for unilateral executive policy. The Fourteenth Amendment’s citizenship rule is not dependent on presidential consent or administrative redefinition.

Executive Order 14160 therefore represents an attempt to circumvent these structural limits—substituting executive policy for a constitutional command that was specifically enacted, and repeatedly reaffirmed, to prevent such discretionary exclusions. Permitting the President to re-draw the line of citizenship based on executive preference or policy would contradict the entire constitutional design and the very purpose for which the Citizenship Clause was adopted and entrenched.

Conclusion

The Fourteenth Amendment’s Citizenship Clause is the culmination of a deliberate and far-reaching constitutional settlement. Rooted in the Civil Rights Act of 1866 and sharpened by the rejection of Dred Scott and the debates surrounding President Johnson’s veto, Congress and the American people chose to make birthright citizenship a matter of constitutional principle rather than political will. The debates and legislative record underscore that the universal, objective grant of citizenship by birth was widely recognized, openly discussed, and purposefully adopted—precisely to prevent future exclusion, manipulation, or executive limitation.

From the Amendment’s ratification to the Supreme Court’s watershed decision in United States v. Wong Kim Ark, the basic rule—citizenship for nearly all born on U.S. soil—has been sustained by overwhelming judicial consensus. That consensus is powerfully reinforced by the doctrine of stare decisis. As the Supreme Court affirmed in Patterson v. McLean Credit Union, stare decisis “is a basic self-governing principle within the Judicial Branch ... [that] ensures that ‘the law will not merely change erratically’ and ‘permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.’ ... [A]ny departure from the doctrine of stare decisis demands special justification.’” 491 U.S. 164, 172–73 (1989). Such justification is especially exacting for settled constitutional precedent like Wong Kim Ark, since only a constitutional amendment or fundamental disruption of doctrine could warrant a change.

Attempts like Executive Order 14160 to redefine citizenship by executive fiat are incompatible not just with the constitutional text, but with the allocation of authority within our constitutional structure. Congress’s exclusive power over naturalization, the self-executing nature of birthright citizenship, and the President’s limited role in executing—not remaking—the law together foreclose any unilateral executive revision. As Youngstown Sheet & Tube Co. v. Sawyer confirms, “[t]he President’s power ... must stem either from an act of Congress or from the Constitution itself.” 343 U.S. 579, 585 (1952).

Modern efforts to cabin the scope of the Citizenship Clause—contrary to the public understanding and legislative intent apparent even to 19th-century opponents—are not supported by the text, history, or longstanding judicial interpretation. Indeed, such efforts are particularly suspect where, as here, the claimed reinterpretation sits at odds with the principles of originalism and textualism invoked by its own proponents.

The settled constitutional rule endures: birthright citizenship is not subject to the political preferences or policy initiatives of any one branch or officeholder. The Fourteenth Amendment was designed to secure equal citizenship by birth, and the doctrine of stare decisis helps ensure that this protection remains robust against the very kind of executive intervention attempted by EO 14160.