Analysis on the Arguments of Contemporary Immigration Policy and Birthright Citizenship

Spring 2026

Reese Foster

Edited By: Leah Smith

Immigration has consistently been a deeply ingrained issue in United States politics. Since the United States’ founding, the requirements for citizenship have been ever-changing. Historically, policies were largely based on race and ethnicity, most intensely for Asian immigrants who arrived in large numbers in the late 19th and early 20th centuries. After World War II, immigration and its subsequent policies had become less of a spotlight in American politics. In contemporary times, it has yet again reached the forefront of not only political thought, but direct policymaking. 

President Donald Trump’s two terms have been a leading catalyst in the increasing interest over United States immigration. During the 2020 presidential elections, the Trump administration heavily advocated for the “Build a Wall” movement. Advocacy for steep and strict immigration policies arose during Trump’s first and current terms. This increased focus on immigration regulation led to President Trump signing Executive Order 14160 on January 20th, 2025. This order, titled “Protecting the Meaning and Value of American Citizenship,” denies citizenship to a person born in the United States, by a mother who is not a United States citizen or lawful permanent resident [1]. It has reached the Supreme Court through the case of Trump v. Barbara [2]. A ruling is expected to be issued by June 2026. Critics have claimed this order to be unconstitutional and un-American. However, supporters claim that policies such as this are necessary in regulating illegal immigration into the United States.

This article aims to examine President Trump’s most influential debates and attempts at legislation restricting immigration. In this article, the most influential debates and attempts at legislation restricting immigration throughout Trump’s presidency will be examined. More specifically, the validity of President Trump’s executive order regarding birthright citizenship will be studied in terms of constitutionality, and in turn will uncover possible underlying incentives and interests behind this citizenship restriction. This article will attempt to forecast what may result from the SCOTUS’s decision after evaluating different opinions and arguments on Executive Order 14160. 

The 14th Amendment, ratified in 1866, explicitly lays out birthright citizenship as a constitutional right. However, the language has been seen as somewhat ambiguous throughout the longstanding debate over this right. The question of whether the right extends to those born on U.S. soil by parents who are not legal citizens is widely debated and serves as the basis behind President Trump’s argument justifying his executive order. In 1898, a landmark case in shaping immigration policy was ruled upon by the Supreme Court. United States vs. Wong Kim Ark ruled in a 6-2 decision that all individuals within U.S. geographical boundaries, except for those of foreign ambassadors who are “...the highest-ranking diplomatic officer, designated by the government as its resident representative in a foreign state or before an international organization,” were legal citizens of the United States [3] [4] [5]. The case was sparked when Wong Kim Ark traveled to China briefly and was not granted immediate access back into the U.S., despite having proof of his birth in the United States. The case gained vast national interest, from immigrants who faced similar backgrounds. This included those of European descent, whose citizenship status had never before been contested. 

The foundation on naturalization and birthright citizenship in race has been continually implemented since Asian exclusion, however the groups targeted have shifted. Examining Trump’s focus on immigration in his initial campaigning points to one major argument made by anti-Trump immigration policy supporters. Trump’s infamous Phoenix rally on his campaign trail in 2016 laid out his administration’s aggressive goals for immigration policy that gained vast popularity among the MAGA support base. “Build a Wall” became the most well known of these initiatives. Trump wanted to use his Wall to reform the legal immigration system “...to serve the best interests of America and its workers…” [6]. These ideas remained central to the Trump administration, with anti-immigrant rhetoric growing even stronger after his 2020 election. The President claimed immigrants were "...poisoning the blood of our country…” and promised to “...carry out the largest domestic deportation operation in history…” [7]. On January 20th, 2025, he substantiated his commitment to anti-immigration legislation when he issued Executive Order 14160, which denied citizenship to a person born in the United States to a mother who is not a United States citizen. This executive order has since been subjected to numerous lawsuits, including class action suit Trump v. Barbara, which has brought the order to the Supreme Court. The ruling is expected to be issued by June 2026 [8] [9].  

To understand how the Trump administration justifies its strong promotion of EO 14160, multiple angles supporting this order must be analyzed. In terms of constitutional interpretation, the Trump administration argues that Elk v. Wilkins (1844) negates the ruling in the Ark case [10]. In Elk v. Wilkins, a native american was denied U.S. citizenship after voluntarily leaving his tribe.  Being born in his tribe’s territory. John Elk was born in a reservation after leaving, was employed and paid taxes [11]. The executive order also gained support because it closed what some view as a "constitutional loophole” in gaining legal immigration status. The common argument asserts that birthright citizenship incentivizes illegal immigration by creating an easier path to becoming a United States citizen. Therefore, the original meaning of the 14th Amendment states that illegal immigrants are “...not entitled to birthright citizenship under the Constitution." The executive order thus helps in “[p]rotecting the meaning and value of American citizenship” in the eyes of proponents [12]. 

However, economic impact and social concerns seem to remain the largest points of reason for the push of Executive Order implementation. From an economic perspective, supporters claim immigrants often reap the reward of federal, state, and local services that are covered by taxpayer funding without contributing in the same way as legal citizens. This includes public education, welfare, and other programs such as food banks and health clinics. It is estimated that at the state and local level, $115 billion is spent annually on these programs [13]. Therefore, from this viewpoint, immigrants heighten costs for programs while benefiting from these government provided services. Another popular anti-birthright citizenship justification is the assertion that immigrants take jobs away from unemployed U.S. citizens. The United States workforce employs 8.5 million undocumented workers, a substantial number that does potentially hinder opportunities for existing citizens [14]. Therefore, eliminating birthright citizenship for those born to undocumented parents, will allow for more career openings for U.S. citizens. 

In contention, birthright citizenship advocates explain how immigrants actually do contribute taxpayer money to the United States economy. According to the Center for Migration Studies, it is estimated that those who gained citizenship through the 14th Amendment, work in the United States labor force at higher participation rates than U.S. born adults with at least one U.S. born parent. They are also projected to have contributed $7.7 trillion to the U.S. economy between 1975 and 2074. Opponents also explain that illegal immigrants provide labor for corporations at cheaper rates and fill occupations that are seen as undesirable or unwanted by citizens. Fields that undocumented workers are employed in at the highest rates are fast growing and often rely on immigrant labor. These industries include accommodation and food services, construction, and manufacturing [15]. These facts demonstrate that the argument that illegal immigrants are a financial burden to the United States is not as strong as its proponents believe.

Challengers of anti-birthright citizenship legislation also base their arguments in the 14th Amendment. They contend the Elk v. Wilkins with the Ark case which serves as a strong legal basis for pro-birthright citizenship claims. The sole fact that precedent has already been established in favor of birthright citizenship, even if the parents were not born in the U.S., is important in the interpretation of the 14th Amendment and will therefore likely impact the justices’ opinions. Immigration policy has disproportionately affected people of color since the founding of the United States. In the 19th and early 20th century, the single most impacted group was Asian immigrants. Several laws targeting Chinese and Japanese migrants were implemented to inhibit their ability to immigrate into the U.S. freely. Soon after The Constitution was ratified, Congress passed a law governing naturalization that placed race as a central factor. The Nationality Act of 1790 established the naturalization process. It stated that “...any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years,” was eligible for naturalization. Policies created to restrict Asian immigration included the 1885 Foran Act, which banned immigration of contract laborers regardless of national origin, the Chinese Exclusion Act, and the Gentlemen’s Agreement. The hindrance of Asian immigration faded when China became an essential ally in the Pacific War against Japan in the 1940s. The Repeal of the Chinese Exclusion Act in 1943 placed Chinese immigrants under the same restrictions as Europeans [16]. However, because the United States was only inclined to lessen restrictions for Asian immigrants when in need of military support, it is clear that the basis of citizenship and naturalization in race remained. 

Advocates for Executive Order 14160 also argue that undocumented immigrants are threats to national security and public safety. They often label them violent criminals. The White House says that immigrants are prone to “...committing vile and heinous acts against innocent Americans [17].”  Thus, from this lens, the executive order is necessary to protect the overall safety of U.S. citizens. In contrast, opponents claim that Trump’s backing public safety argument is largely based on racial bias rather than real concern for U.S. security. The American Civil Liberties Union, which aims to protect immigrant rights, states that Trump’s policies are overtly racist. In speeches throughout his terms, President Trump has supported this argument. “...[t]hey’re not human, they’re animals…” he said in a campaign event in April 2024 in Grand Rapids, Michigan. A month prior, in an interview with Right Side Broadcasting Network, he claimed that immigrants are “...rough people in many cases from jails [and] insane asylums…that’s ‘Silence of the Lambs’ stuff [18].” Aggressive, anti-immigrant speech that generalizes and stereotypes all immigrants seems to be common amongst President Trump’s rhetoric, making it plausible to claim that race plays a larger role in Trump’s executive order than the actual constitutionality of birthright citizenship itself.

Both sides of the debate over birthright citizenship employ social and economic impacts as arguments. While these points cannot be employed in Justices’ official interpretations and decisions of Barbara v. Trump, it will be interesting to evaluate how Justice biases towards Trump’s policies will play a role in the final ruling. With a six to three majority of Republican judges currently serving, three of which are President Trump’s appointments, a vote in favor of Executive Order 14160 is more than plausible. Since this majority has served on the Supreme Court, many rulings supporting conservative arguments have been issued. Some of the most influential include Dobbs v. Jackson which repealed Roe v. Wade, New York State Rifle & Pistol Association Inc. v. Bruen which eradicated New York’s “...more than century-old law which required a “proper cause” to carry a handgun outside the home…” [19] [20] [21] [22]. Therefore, it is likely that in addition to true constitutional interpretation, the Justices will lean on underlying loyalty to President Trump and internal biases against immigration when issuing their opinions. The same can be said for the three liberal leaning justices, however their opinions will not come to fruition without a surprising shift in ideology and interpretation by the rest of the court. 

References

[1] Gerhard Peters & John T Woolley, Executive Order 14160 - Protecting the Meaning and Value of American Citizenship, THE AMERICAN PRESIDENCY PROJECT, (January 20, 2025), https://www.presidency.ucsb.edu/documents/executive-order-14160-protecting-the-meaning-and-value-american-citizenship.

[2] Trump v. Barbara, No. 25-265 (U.S. argued Apr. 1, 2026).

[3] Wex Definitions Team, ambassador, CORNELL LAW SCHOOL: LEGAL INFORMATION INSTITUTE, (October, 2021), https://www.law.cornell.edu/wex/ambassador.

[4] Carol Nackenoff & Julie Novkov, The Foundations of American Citizenship, in AMERICAN BY BIRTH 1, 1-2 (2022).

[5] United States v. Wong Kim Ark, 169 U.S. 649 (1898). 

[6] Sarah Pierce et. al., Trump's First Year on Immigration Policy: Rhetoric vs. Reality, MIGRATION POLICY INSTITUTE, (January 2018), https://www.migrationpolicy.org/research/trump-first-year-immigration-policy-rhetoric-vs-reality

[7] AMERICAN CIVIL LIBERTIES UNION, Trump on Immigration: Tearing Apart Immigrant Families, Communities, and the Fabric of Our Nation, (June 6, 2024), https://www.aclu.org/trump-on-immigration.

[8] Trump v. Barbara, No. 25-265, at 1. 

[9] Amy Howe, How Birthright Citizenship Made it Back to the Supreme Court, SCOTUS BLOG, (September 29. 2025), https://www.scotusblog.com/2025/09/how-birthright-citizenship-made-it-back-to-the-supreme-court/.

[10] Elk v. Wilkins, 112 U.S. 94 (1884). 

[11] Scott Bomboy, Supreme Court to Finally Hear Merits Arguments on Birthright Citizenship, NATIONAL CONSTITUTION CENTER, (March 27, 2026), https://constitutioncenter.org/blog/supreme-court-to-finally-hear-merits-arguments-on-birthright-citizenship.

[12] MONTANA DEPARTMEN OF JUSTICE, Attorney General Knudsen Defends President Trump’s Executive Order that Protects the Value of American Citizenship and Stops Incentivizing Illegal Immigration, (Febreuary 4, 2025), https://dojmt.gov/attorney-general-knudsen-defends-president-trumps-executive-order-that-protects-the-value-of-american-citizenship-and-stops-incentivizing-illegal-immigration/.

[13] MONTANA DEPARTMENT OF JUSTICE, supra note 11, at 3.

[14] Matthew Lisiecki, The Role of Undocumented Workers in High-Growth. Occupation and Industries Across the United States, CENTER FOR MIGRATION STUDIES, (August 27, 2025), https://cmsny.org/publications/undocumented-workers-in-high-growth-occupations-and-industries/.

[15] Lisiecki, supra note 7, at 3.

[16] Repeal of Chinese Exclusion, IMMIGRATION HISTORY, https://immigrationhistory.org/item/1943-repeal-of-chinese-exclusion/.

[17] THE WHITE HOUSE, Protecting the American People Against Invasion, (January 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-american-people-against-invasion/.

[18] AMERICAN CIVIL LIBERTIES UNION, supra note 6, at 2. 

[19] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

[20] Roe v. Wade, 410 U.S. 113 (1973).

[21] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

[22] Vincent M. Bonventre, 6 to 3: The Impact of the Supreme Court's Conservative Super-Majority, NEW YORK STATE BAR ASSOCIATION, (October 31, 2023), https://nysba.org/6-to-3-the-impact-of-the-supreme-courts-conservative-super-majority/?srsltid=AfmBOoppQPs6GY_W8jdM9r2qXlgPKplaOse7sjvbFXROPVns-CcSpRED.