On June 27, 2020, the US Supreme Court made a major ruling with profound implications on birthright citizenship. travel regulations.
Birthright citizenship has been an enshrined principle in the Constitution for over 160 years. This grants US citizenship. any child born on American soil. Donald Trump signed a bill on the first of his second tenure in office. executive order Intentions to end birthright citizenship without restrictions, which could threaten automatic citizenship for those children born in the US to parents temporarily (such as during a visitor visa) or without documentation.
This recent Supreme Court case has led to a series legal and procedural challenges which could affect citizenship and, in turn, the ability of some individuals to travel, both domestically as well as internationally. What you need to know.
What does the Supreme Court decision on birthright citizenship mean to you?
The Supreme Court did not rule on the constitutionality of birthright citizenship nor overturn it. Justices decided to limit the nationwide injunctions issued from lower courts. These legal maneuvers had, up until now, prevented the executive orders from moving forward.
“The Court essentially held that even if an executive order were clearly unconstitutional, federal judges’ decisions could only protect the specific people who sue, not everyone who might be harmed,” explains Elizabeth Ricci, a partner at Rambana & Ricci and an adjunct professor of immigration law at Florida State University.
When will the executive orders go into effect?
The Supreme Court’s decision did not directly address constitutionality, but it allowed the executive order to go into effect.
But the Justices set up a 30-day deferral, which gives politicians, lawyers, and groups that support immigrants’ rights until July 27, 2025 Applying any new legal maneuvers such as class action lawsuits.
The American Civil Liberties Union has filed a nationwide lawsuit to challenge the birthright citizenship law. A hearing is scheduled for July 10. If the judge rules against the ACLU, the executive order will not go into effect.
The order will take effect on July 27 in the state if it has not been challenged (or if no state does so before that date) and unless any other lawsuits are successful in obtaining nationwide relief. White House will have until July 27 to explain how the US government intends to enforce its changes in the states it can be implemented.
What states have contested the decision to end birthright citizens?
Michael Cataliotti, immigration lawyer with Cataliotti Law, said that 22 states, plus Washington, DC, have already asked federal judges to stop Trump’s executive orders on birthright citizenship. This is “an indication of where policies and practices are going to preserve birthright as the basis of the constitution framework.” These include:
Ricci says it doesn’t mean that the 28 other states support this order. “They could be watching to see how the litigation unfolds, preparing for their own legal challenges, and even punting out of political concerns.” Even if they decide not to challenge the order and if no other rulings block adoption, the order will be implemented on or after July 27. This could lead to a patchwork application of birthright citizenship in the US.
For those states where a judge has already blocked the policy of ending birthright citizenship, the executive order can’t be enforced there—for now. Plaintiffs in every case are protected against the executive order after July 27, at least until courts decide on their individual lawsuits. This protection isn’t indefinite—it lasts as long as the preliminary injunction is in place for those named plaintiffs. So, while those plaintiffs won’t be affected by the executive order on July 27, that protection is not permanent—it hinges on the outcome of the case and any future rulings.
There’s another catch: the Supreme Court ruled recently that court orders could only protect those who were actually involved in the lawsuit, unless it was certified as a “class action.” If these states don’t win more protections for their residents, then some families may still fall through.
What could be the implications for travel if birthright citizenship is abolished?
Under the executive order, children born after July 27, 2025, to undocumented or temporary-status parents could lose automatic citizenship—unless covered by an injunction or successful class action. Cataliotti also added that this would include children of visa holders with non-immigrant status in the US (such as B-1/B-2 visitors, F-1 student, H-1B/L-1 and TN visa holders).
Juan Rivera, immigration attorney with Juan C Rivera PLLC says that US-born babies could be deported, despite the fact that their parents may still be legally in the US. Trump’s lawyer confirmed that no deportations will take place until the order takes effect on July 27. Reuters reports.
“Depending on where visa holders are located and where their children are born, the child may be deemed an American and issued a birth certificate…or not,” Cataliotti says. “If, say, there is ongoing litigation in California, then those children will be considered US Citizens. If we look at Texas, these children will not be considered US Citizens. It’s an absolute disaster.”
Rivera continues, “This can create a group of children who are stateless or not citizens in the US. This has significant legal and sociological implications.”
Stateless children are not recognized by any nation as nationals. This is often because they were born in a nation that does not grant birthright citizenship or have parents who do not hold citizenship. It could also be due to their status being stripped for ethnic or religious purposes. Stateless children do not have the same legal protections and rights as citizens and face difficulty accessing basic services like education and health care, since many countries require citizenship. According to the UN, at least 4.4 million people There are many people who do not have a state.
Rivera says the baby may be able stay in the US if they are not citizens. “If the parents have legal visas to the US, then the child can stay as a derivative (or dependent) on their visa.” The child wouldn’t be a US Citizen and wouldn’t have the right of permanent stay.”
Those children, however, would be ineligible for any benefits if their citizenship is not recognized. US passport, which is issued at the federal level, says Bradford Bernstein, an immigration attorney at Spar & Bernstein. These children will face serious travel problems if they do not have a passport, such as being unable to travel internationally, enter the US again, or prove their legal status in the country.
Rivera explained that this policy doesn’t apply retroactively. Therefore, children born before 27 July keep their citizenship. He added, however, that “obtaining an US passport would make it wise to have another proof of citizenship.” For babies born since that date, parents are encouraged to apply for passports immediately. This may resolve the status of their child before it becomes a gray area in law.
Rivera argues that the US Constitution protects a person’s right to travel freely between US states. If the order is not applied evenly, there is no precedent in the US for citizenship checkpoints. Even if the child is not recognized as a US citizen by one state, there may be problems getting them a passport, birth certificate or other social services.
“These kinds of bureaucratic hurdles could feel a lot like internal ‘checkpoints’—even if they’re not called that,” Rivera says.
What’s next?
Jennifer Behm of Berardi immigration law says that for the time being, it is up to the lower courts to decide whether birthright citizenship should be considered a constitutional right.
“The core question—whether the executive order violates the 14th Amendment—will now be tested in the appeals courts,” Behm says. Conflicting rulings between circuits will likely force the Supreme Court revisit the issue to decide on the constitutional merits. First, the court addressed procedural issues. Next, we will see if the president can change the meaning of citizenship.
She continues: “I don’t believe that the administration will succeed in redefining Constitution and overturning decades of legal precedents through a single Executive Order, but the Constitutional fight is still to come.”
How does citizenship work around the globe?
Citizenship in the world is primarily granted by two methods – jus soli, or “right of soil”, and jus bloodis (rights of blood). Jus soli is a method of granting citizenship to those born in a particular country, regardless their parents’ nationality. Jus sangiis is a method of granting citizenship based on nationality and ethnicity.
“Some countries, like Germany, combine the two—requiring that at least one parent has legal ties to the country,” Rivera says. The US and Canada are two of the few countries that automatically grant citizenship to nearly every child born in their country. This shift is so important because it’s a break with a longstanding tradition.
Many countries allow citizens to apply for citizenship. based on their ancestryEven if they weren’t born there, you can still become a citizen of. Ireland and Italy, for example, grant citizenship to those who can trace back their ancestry to a native of the country, usually up to multiple generations. This is called citizenship by descent, and it is a more historical form of jus sanguis.
A growing number countries are offering citizenship by investment programsIt allows individuals to gain citizenship through significant financial contributions, such as buying property, creating employment, or donating money to national projects. Popular countries for these programs include Malta and Panama. These alternative paths to citizenship add a new layer of complexity in how citizenship is granted worldwide. They offer options for individuals who have historical ties to a country or significant financial means to acquire citizenship beyond the traditional means.
