Can Birthright Citizenship Be Changed Through Treaty Powers? Experts Doubt It

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Key Takeaways

Trump issued an executive order on January 20, 2025, to deny birthright citizenship to certain children born after February 19, 2025.
Federal courts blocked the order, citing the 14th Amendment and legal precedent protecting birthright citizenship since 1868.
Treaty powers cannot amend constitutional provisions like the 14th Amendment, requiring a constitutional amendment to change birthright citizenship.

President Donald Trump’s recent attempt to end birthright citizenship through an executive order has reopened a contentious debate about the boundaries of presidential authority and constitutional protections. Under the 14th Amendment, the principle of birthright citizenship has been a cornerstone of United States constitutional law since its adoption in 1868. Yet, efforts to challenge or redefine this provision have persisted over the years. One question that has gained traction is whether treaty powers, granted to the president under the Constitution, could be used to restrict birthright citizenship. This question, while intriguing, faces significant legal and constitutional roadblocks.

The Executive Order and Immediate Legal Challenges

Can Birthright Citizenship Be Changed Through Treaty Powers? Experts Doubt It

On January 20, 2025, President Trump marked the beginning of his second term in office by issuing an executive order entitled “Protecting the Meaning and Value of American Citizenship.” The order sought to deny birthright citizenship to two specific groups of children: those born to undocumented immigrants and those born to non-immigrant visa holders unless the father held U.S. citizenship or lawful permanent residency. Under the executive order, these changes were set to apply to births occurring from February 19, 2025, onward.

Legal pushback was almost immediate. A mere three days after the order was signed, Federal District Court Judge John C. Coughenour ruled it “blatantly unconstitutional” and issued a temporary restraining order. This was followed on February 5, 2025, by a preliminary injunction from Federal District Judge Deborah L. Boardman, which indefinitely blocked the executive order. Courts relied on the 14th Amendment and over a century of legal precedent to argue that altering birthright citizenship required more than executive action.

The Citizenship Clause of the 14th Amendment reads: “All 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.” This protection was upheld in the landmark Supreme Court case United States v. Wong Kim Ark in 1898, which confirmed that children born on U.S. soil to non-citizen parents are citizens. Legal experts agree that bypassing this constitutional clarity would necessitate an amendment to the Constitution, a step far beyond the reach of a single executive action.

Exploring Treaty Powers as an Alternative Path

In light of the constitutional hurdles that blocked the executive order, some legal analysts have questioned whether the president could invoke treaty powers to restrict birthright citizenship. The treaty power, established in Article II, Section 2, Clause 2 of the Constitution, allows the president, with the “advice and consent of the Senate,” to enter into agreements with foreign nations. Treaties, under the Supremacy Clause, are considered part of the “supreme law of the land,” granting them significant authority.

However, even the treaty power finds its limits within the Constitution. Legal scholars overwhelmingly agree that a treaty cannot override or amend constitutional provisions. Birthright citizenship is enshrined in the 14th Amendment and is thus beyond the reach of treaty-based restrictions. As Gerald Neuman, a Harvard Law School professor, succinctly stated, “The president of the United States has no authority to change citizenship rules at all.”

Constitutional Hurdles and Legal Impossibilities

The supremacy of the Constitution over treaties presents an insurmountable challenge for those seeking to use treaty powers to redefine birthright citizenship. While treaties can guide or influence domestic law, they cannot contravene clear constitutional directives. Furthermore, even if a treaty explicitly sought to limit birthright citizenship, its practical implementation would require enabling legislation from Congress. Such legislation would face the same constitutional roadblocks that have stymied prior attempts to alter the 14th Amendment provision through other means.

Additionally, the courts have continually rejected legislative efforts to limit birthright citizenship, citing the 14th Amendment’s explicit guarantees. Most recently, Senators Lindsey Graham, Ted Cruz, and Katie Britt introduced the Birthright Citizenship Act of 2025, aiming to restrict citizenship for children born to undocumented individuals or non-immigrant visa holders. Legal and constitutional experts widely agree that this legislation, like executive orders or treaties with similar objectives, would almost certainly be struck down as unconstitutional.

The Potential Consequences of Altering Birthright Citizenship

Efforts to end or restrict birthright citizenship bring significant implications not just constitutionally but also socially and administratively. Legal commentators have warned that eliminating birthright citizenship would create a permanent underclass of individuals without any nationality, as children born in the United States would no longer automatically inherit U.S. citizenship. Such a shift could generate severe societal divisions. Gerald Neuman warns of the creation of a “hereditary caste of people who are not citizens,” potentially leading to systemic inequity and increased vulnerability to exploitation.

From a practical standpoint, altering birthright citizenship would also pose immense administrative challenges. The current process for verifying U.S. citizenship is relatively straightforward—requiring only a birth certificate for most U.S.-born citizens. A shift away from birthright citizenship would necessitate the development of complex new documentation and validation systems to prove citizenship, leading to bureaucratic inefficiencies and further disputes.

The Judiciary’s Role and Upholding the 14th Amendment

The decisive interventions from federal judges in blocking Trump’s executive order underscore the enduring strength of constitutional protections for birthright citizenship. The judiciary consistently defends the 14th Amendment from unilateral executive actions and legislative attempts to alter its scope. Judges have pointed not only to the Amendment’s clear language but also to the robust body of legal precedent, led by United States v. Wong Kim Ark, that cements its guarantees.

Moreover, constitutional scholars have highlighted the unique difficulty of amending the U.S. Constitution, which requires approval by two-thirds of both houses of Congress and ratification by three-fourths of state legislatures. In a politically polarized climate, achieving this threshold seems highly improbable.

Broader Implications for Immigration Policy

Trump’s attempt to terminate birthright citizenship and related debates over treaty powers reflect broader tensions in U.S. immigration policy. While some lawmakers and activists have called for stricter limits, these efforts continue to collide with constitutional, legal, and ethical barriers. At the same time, the political discourse surrounding birthright citizenship influences public perceptions of immigration and citizenship, often inciting emotional and divisive reactions.

As reported by VisaVerge.com, the debate has highlighted the growing need for clarity in immigration laws and the balance of power among the executive, legislative, and judicial branches. This discussion underscores the enduring resilience of the Constitution in safeguarding fundamental rights, even amid efforts to reinterpret its provisions.

Conclusion

The constitutional protections enshrined in the 14th Amendment make any effort to end birthright citizenship—whether through executive orders, legislative actions, or treaty powers—highly unlikely to succeed. Both historical precedent and modern case law hold that birthright citizenship is a foundational aspect of American constitutional law. Attempts to circumvent these protections would not only fail under judicial scrutiny but could also produce far-reaching adverse consequences.

The principle of birthright citizenship, affirmed by over a century of legal precedent, remains central to the nation’s identity and the protections it affords to all individuals born within U.S. borders. While debate over the issue persists, the road to altering this provision lies firmly in the constitutional amendment process, far beyond the reach of presidential powers or treaty authority. For official information on the treaty power, visit the National Archives’ explanation of the Constitution here.

Learn Today

Birthright Citizenship → Automatic granting of citizenship to individuals born on U.S. soil, as established by the 14th Amendment.
Executive Order → A directive issued by the U.S. president that manages operations of the federal government, without requiring congressional approval.
14th Amendment → A constitutional provision ensuring equal protection under law and granting citizenship to anyone born or naturalized in the U.S.
Treaty Power → The president’s authority, with Senate approval, to make agreements with foreign nations, as outlined in Article II of the Constitution.
Preliminary Injunction → A temporary court order preventing certain actions until a full hearing determines whether they are lawful.

This Article in a Nutshell

President Trump’s 2025 executive order attempting to deny birthright citizenship reignited fierce constitutional debate. Quickly blocked by federal courts, citing the 14th Amendment and longstanding precedent, the action highlighted strict limits on presidential authority. Experts unanimously agree: altering birthright citizenship demands a constitutional amendment, not executive or treaty powers—a virtually impossible political feat.
— By VisaVerge.com