Second Class Citizens: The Implications of Executive Order 14160 and the End of Birthright Citizenship
- WULR Team
- Mar 13
- 6 min read
An analysis of President Trump's Executive Order 14160 and its implications on citizenship
Published March 13th, 2026
Written by Nick Zylstra
Since 1897, the principle of jus soli—the right to American citizenship for any person born on American soil—has been unchallenged law in the United States. Within hours of taking office on January 20th, the Trump Administration upended this principle with Executive Order 14160, which denied citizenship to children born on American soil who lack a parent with permanent resident status. While the enforcement of Executive Order 14160 has been blocked by lower courts, the issue will ultimately be decided by the Supreme Court in Trump v. Washington in a ruling expected this summer. Should the Supreme Court side with the Trump Administration, the consequences of the upending of birthright citizenship—bureaucratically, legally and socially—would be profound.
While birthright citizenship is often seen as a policy meant to integrate immigrants into the United States, it also provides a service to American bureaucracy. As it currently stands, any child born on American soil is granted a birth certificate: immediate proof of their American citizenship and a ticket to the rights and privileges of being an American citizen. If EO 14160 is upheld and the Trump Administration succeeds in upending birthright citizenship, this administrative boon would cease to exist. Suddenly, state and local records offices–the agencies responsible for issuing birth certificates–would have to find new ways to establish which of their newborns are and aren’t U.S. citizens. Doing so would require these offices to suddenly navigate the maze of U.S. immigration law, combing through parents’ birth certificates, green cards, certificates of citizenship and other documents any one parent may or may not have. County clerks would have the job of determining permanent residency in a manner more familiar to immigration lawyers than to county bureaucrats. This would vastly increase what public policy scholars Daniel Moynahan and Pamela Herd refer to as the administrative burden–the idea that an increase in government rule or regulation creates a cost of compliance that disproportionately falls on lower-income households, the elderly and non-English speakers. The sudden burden of proving American citizenship beyond a birth certificate not only at the hospital, but at the DMV, passport office and any other venue of interaction with government, would likely lead to American citizens being delayed or denied in their benefits of citizenship - especially if they don’t have the time, language ability, or cognitive capacity to handle such onslaughts of paperwork. Such a burden would have enormous consequences. As highlighted by the New England Journal of Medicine, when Arkansas introduced a work requirement for state Medicaid benefits, 17,000 Arkansans lost access to state coverage. Yet, 95% of those who lost coverage actually met the new criteria established for access: they lost coverage not because of their lack of work, but simply because they didn’t, or couldn’t, keep up with the new documentation requirements the state of Arkansas began to ask of them. Extending new administrative burdens to Americans by declaring that a birth certificate is no longer enough to prove citizenship will almost certainly cause millions of Americans to lose crucial government benefits, only because they couldn’t keep up with new paperwork requirements.
While the overturning of birthright citizenship would mark an unprecedented administrative burden on American families, it would also be a continuation of an existing trend. The last half-decade of the Roberts Court has displayed a disregard for the value of precedent in the American legal system. Siding with the Trump Administration on EO 14160—and thereby overturning the century-old precedent set by U.S. v. Wong Kim Ark—would mark further movement by the Roberts Court along the death march away from stare decisis. Wong Kim Ark himself was an American, born in San Francisco to Chinese immigrant parents. Upon return from a visit to his parents, now residing in China, in 1895, Ark was denied entry into the United States by a customs officer at the Port of San Francisco, arguing with the legal backing of the recently-passed Chinese Exclusion Act. The Supreme Court ruled that Wong Kim Ark was not Chinese, and therefore subject to the Act—being born in the United States, he was an American citizen, entitled to the right of entry into his home country. The Court went further: they ruled that Kim Ark’s parents were not, per the text of the 14th amendment, “subject to the jurisdiction of” China. Despite being Chinese citizens, they were not Chinese, in the eyes of the Court. They were American.
This precedent not only established that American citizenship does not determine who is and isn’t American, but it also became an important basis for the birthright citizenship cases to follow. In 1967, the Warren Court drew on Wong Kim Ark in Afroyim v. Rusk to rule that American citizenship cannot be involuntarily stripped away by the government— it must be voluntarily relinquished. In 1982’s Plyler v. Doe, the Court ruled that undocumented immigrant schoolchildren are still entitled to public education, citing Wong Kim Ark. Should the Roberts Court side with the Trump Administration, they would not only be overturning Wong Kim Ark, but also put Afroyim and Plyler in danger of being overturned as well–opening the door for the government to take away the privileges of citizenship without the consent of American citizens, or to deny certain universal public benefits, like schooling, to non-citizens. More broadly, it would mark an expansion of a trend of overturning precedent from the Roberts Court that legal experts–including Chief Justice Roberts himself–argue could threaten the stability, evenhandedness and legitimacy of the Court itself. Should the Supreme Court overturn Wong Kim Ark, it would mark another death blow to the idea that the Supreme Court is a neutral body that respects the rule of law, and not a political pawn that sees stare decisis as secondary to ideology.
Finally, it’s important to acknowledge that overturning birthright citizenship as it currently stands would affect the day-to-day lives of Americans first and foremost. Overturning birthright citizenship would effectively create a second caste of Americans, born with residence in the United States but forbidden from acquiring American citizenship and its benefits, with no viable path to do so. Importantly, EO 14160 does not declare non-birthright citizens to be illegal in the United States. While the Trump Administration would likely expand their deportation policies to the newly-undocumented children EO 14160 would affect, it is not a guarantee that subsequent administrations would do so. But should the Court declare that birthright citizenship is no longer law, this would leave the children of undocumented immigrants and non-permanent residents in a limbo of American-ness, not causing them to be deported from the United States, but not guaranteeing them the benefits of American citizenship either.
While this would have profound impacts, the concept of Alien citizenship is not new in American history. In a series of cases following the Spanish-American War, the Supreme Court decided the residents of newly acquired American territories including Puerto Rico, the Philippines, and Panama were not entitled to American citizenship. However, the Court did not rule on what these newly subjected peoples actually were, instead leaving it up to courts to rule on a case-by-case basis. Immigration scholars have called the insular cases the beginning of the alien citizenship regime: the idea that, despite being Americans, those affected by the insular cases were aliens in their own nation. Subsequent court cases denied alien citizens the right to a trial by jury and federal entitlement programs.
The Trump Administration’s crusade against undocumented immigrants receiving federal entitlement benefits suggest, should EO 14160 be upheld, newly-minted Americans would lose out on Social Security, Medicare, and SNAP benefits, among others. Considering non-American citizens are more than twice as likely to fall under the poverty line as American citizens, according to the Center for Immigration Studies, a revocation of these benefits would take away one of the few lifelines American immigrants have. This alien citizenship would exist for generations. Children of non-birthright citizens would be left to the same legal limbo their parents would be. The only way out, an increasingly bureaucratic and difficult naturalization process, would prove too impossible a hill for many alien citizens to climb. Without the legal protections of citizenship, alien citizens would be plunged into what German philosopher and Holocaust refugee Hannah Arendt referred to in her book The Origins of Totalitarianism as the phenomena of statelessness: the idea that, without the citizenship of a state to protect them, stateless individuals are more vulnerable to totalitarianism and violations of human rights. Arendt observed this firsthand: The Nazi regime, in 1935 passed the Nuremberg Laws, which stripped the protections of citizenship from German Jews, a move that the National World War II museum refers to as the legal basis for the Holocaust. While the Constitution would still apply to alien citizens, a Supreme Court decision ruling that would establish a second-class citizenry would open the door for the Trump Administration, and any subsequent administrations, to chip away at the civil rights of alien citizens—whether it be through the revocation of government-provided benefits, or the expansion of operations that arrest and deport Americans without granting them due process. The overturning of birthright citizenship would not only impact the issues of undocumented immigration the Trump administration seeks to solve now—it would plunge generations of Americans into decades of second-class citizenship, without a legal system by their side.
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