Children born in the United States to parents unlawfully or temporarily present are not citizens under the Fourteenth Amendment unless Congress provides otherwise.

The question is whether the Citizenship Clause of the Fourteenth Amendment requires the United States to grant citizenship to every child born on its soil, regardless of the parents’ status. The text says: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.' The key phrase is 'subject to the jurisdiction thereof.' At the time of ratification, this phrase was understood to mean 'not subject to any foreign power.' The Civil Rights Act of 1866, which preceded the Amendment, used the exact phrase 'not subject to any foreign power.' The debates confirm that Senator Trumbull explained that 'subject to the jurisdiction' meant 'not owing allegiance to anybody else.' Children born to foreign diplomats are exempt because they owe allegiance to their home country. Children born to Indian tribes were exempt because they owed allegiance to the tribe. Similarly, children born to parents who are unlawfully present or temporarily present (e.g., on visas) retain allegiance to their parents’ home country and are therefore not fully 'subject to the jurisdiction' of the United States. The common law rule of jus soli was not incorporated wholesale into the Constitution; the Amendment deliberately added the jurisdictional qualifier. Therefore, the Executive Order of January 20, 2025, which denies citizenship to such children, is consistent with the original meaning of the Fourteenth Amendment. The holding of United States v. Wong Kim Ark (1898) is overruled as inconsistent with the text and original understanding. Congress may, under its naturalization power (Article I, Section 8, Clause 4), provide for citizenship of such children, but the Constitution does not require it.