By Sofia Hernandez '28
On January 20th, 2025, President Trump set forth 26 executive orders, marking the enactment of a new era of policy. (1) These orders are signed statements by the President with the power of law that can be used to instruct government agency actions. (2) Executive Order 14160, deemed Protecting The Meaning and Value of American Citizenship, would set a new precedent that conditionally restricts citizenship to those born in the United States, overturning previous interpretations of the 14th Amendment's citizenship clause. (3) This executive order holds that, if a person’s mother was in the U.S. unlawfully at the time of birth and their father was neither a lawful permanent resident nor a U.S. citizen, or when that person’s mother claimed lawful, but temporary presence in the U.S. (such as through a visa) and their father was neither a lawful permanent resident nor a U.S. citizen at the time of their birth, that person was born in the U.S., but not subject to its jurisdiction thereof. (4) Through this definition, many Americans born in the U.S. will fail to be “subject to the jurisdiction” of the United States, thereby allowing the Trump Administration to deny them the protections afforded by the 14th Amendment. Many Americans have been left to wonder, “Can the Trump Administration redefine the Fourteenth Amendment?”
The 14th Amendment states that “a person born in the United States, and subject to the jurisdiction of” is a national and citizen of the United States at birth. (5) Those protected under the 14th Amendment are guaranteed equal protection under the law through the Equal Protection Clause. (6) It also prevents States from enacting laws restricting U.S. citizens' rights or protections. Trump’s executive order effectively ended these legal protections for those born to parents who do not meet these conditions on February 19th, 2025. Considering its unconstitutionality, Trump’s executive order is likely to face legal challenges and reach the Supreme Court. To evaluate how the Supreme Court might rule on this executive order, it is essential to understand how the court rules in cases of executive power and how they have previously ruled in similar cases.
In U.S. v Wong Kim Ark, Mr. Kim Ark was born in San Francisco, California to parents who were both Chinese citizens but had been lawfully residing in the U.S. for 20 years before returning to China. (7) When Kim Ark was 21 years old, he went to China to visit his parents and was denied entry back into the U.S. on the grounds that he was a non-citizen. Kim Ark sued, and in 1898, the Supreme Court became responsible for determining whether the 14th Amendment’s citizenship clause extends to a child born in the U.S. to non-citizen parents who are lawful permanent residents. Under the purview of Justice Horace Grey, the majority opinion deemed that Wong Kim Ark was a U.S. citizen under the Fourteenth Amendment’s Citizenship Clause. The court ruled on the principles of jus soli (birthright citizenship), which grants citizenship to all persons born on U.S. soil, regardless of their parents’ nationalities. (8) Since Kim Ark was born in the U.S. and his parents were legal residents, he was declared a citizen by birth. This case set a precedent for conditions that guarantee citizenship to someone born in the United States, providing a broader understanding than that of Trump’s executive order.
Another element to understanding how the Supreme Court reviews the relationship between the Congressional and the Executive branch is seen in Youngstown Sheet & Tube Co. v. Sawyer. In 1952, the Supreme Court ruled against President Truman’s executive order to seize and operate steel mills as a preventative measure against potential worker strikes that would disrupt steel production. The Supreme Court upheld that Truman had no constitutional authority to seize private property. (9) This case is relevant to understanding Trump’s executive order because it gave way to a framework for understanding the relationship between executive power and the other two branches. Justice Jackson separated this framework into Maximum Authority, Zone of Twilight, and the Lowest Ebb.
The Lowest Ebb explains that when the president acts against the explicit or implied will of Congress, his power is at its weakest, and he may only rely on the powers granted to him by the Constitution. (10) By placing President Truman in this category, this framework reinforced that the other two branches must check the executive and that the president is subject to the rule of law. In the case of Trump’s executive order, Congress has not granted the president the authority to alter the definition of the 14th Amendment’s birthright citizenship clause, nor does the Constitution provide this authority. The order also directly opposes longstanding precedent determined in U.S. v Wong Kim Ark, which affirmed that children born in the U.S. to non-citizen, foreign parents are citizens of the U.S. This contradiction with established constitutional interpretations combined with a lack of jurisdiction granted by Congress to alter this definition, places Trump’s action into the third category: Lowest Ebb.
The Trump Administration holds that the Fourteenth Amendment’s citizenship clause was never meant to grant citizenship indefinitely to everyone born within the United States. As an administration that campaigned heavily on immigration reform, this executive order can be seen as an extension of their party platform. While the Trump Administration has attempted to enforce more restrictive immigration policies, the president's exercise of power for this executive order is outside the scope of what has historically been allowed and what is provided in the Constitution. The President has not been delegated any power by Congress that would enable him to reinterpret or redefine the Fourteenth Amendment. The former administration under President Biden upheld the traditional definition of the citizenship clause that grants citizenship universally to those born in the U.S., making the Trump Administration the first in recent years to challenge this understanding.
While the Court is likely to uphold established precedent and find the executive order beyond the scope of the President’s power, this decision has yet to be made. Federal judges have already issued preliminary injunctions blocking its enforcement nationwide, noting present interpretations of its unconstitutionality before it reaches the Supreme Court. (11) Trump’s executive order substantially oversteps the balance of power between the Executive and Judiciary, making it the court’s responsibility to declare it unconstitutional.
Endnotes
USAFacts. "How Many Executive Orders Has Each President Signed?" USAFacts. Accessed March 6, 2025. https://usafacts.org.
PBS News. "What Is an Executive Order? Here’s What the Tool Can and Can’t Do." PBS NewsHour. Accessed March 6, 2025. What is an executive order? Here’s what the tool can and can’t do | PBS News
Donald Trump. Executive Order 14160—Protecting the Meaning and Value of American Citizenship. The American Presidency Project. Accessed March 11, 2025 https://www.presidency.ucsb.edu/documents/executive-order-14160-protecting-the-meaning-and-value-american-citizenship.
The White House. "Protecting the Meaning and Value of American Citizenship." White House, January 2025. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship.
U.S. Constitution. Amendment 14. Constitution Annotated. Congress.gov. Accessed March 9, 2025. https://constitution.congress.gov/constitution/amendment-14/.
Legal Information Institute. "Fourteenth Amendment." Cornell Law School: Legal Information Institute. Accessed March 11, 2025. https://www.law.cornell.edu/constitution/amendmentxiv.
Oyez. United States v. Wong Kim Ark, 169 U.S. 649 (1898). Accessed March 6, 2025. https://www.oyez.org/cases/1850-1900/169us649.
Encyclopaedia Britannica. "Jus Soli." Britannica. Accessed March 11, 2025 https://www.britannica.com/topic/jus-soli.
"Youngstown Sheet & Tube Co. v. Sawyer," 343 U.S. 579 (1952), Oyez, accessed March 9, 2025, https://www.oyez.org/cases/1940-1955/343us579.
The President's Powers and Youngstown Framework." Constitution Annotated. Congress.gov. Accessed March 9, 2025. https://constitution.congress.gov/browse/essay/artII-S1-C1-5/ALDE_00013794/.
The New York Times. "Judge Blocks Trump’s Executive Order to End Birthright Citizenship." New York Times, Accessed March 6, 2025. https://www.nytimes.com.