Immigration to the United States

2026-07-01. Last updated 2026-07-03. These are personal notes, subject to change. None of this is legal advice.

Citizenship Clause

The Citizenship Clause is first sentence of the Fourteenth Amendment of the Constitution:

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.

The Fourteenth Amendment was proposed in 1866 and adopted on 1868-07-09 during the Reconstruction following the Civil War.

Civil Rights Act of 1866

The Civil Rights Act of 1866, printed 1866-03-13, included very similar language in its opening sentence:

… all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed, are hereby declared to be citizens of the United States, without distinction of color, …

The Act was vetoed by President Andrew Johnson on 1866-03-27, who stated:

This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of these races born in the United States is by the bill made a citizen of the United States. … If, as is claimed by many, all persons who are native born already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill can not be necessary to make them such. If, on the other hand, such persons are not citizens, as may be assumed from the proposed legislation to make them such, the grave question presents itself whether, when eleven of the thirty-six States are unrepresented in Congress at the present time, it is sound policy to make our entire colored population and all other excepted classes citizens of the United States. … Besides, the policy of the Government from its origin to the present time seems to have been that persons who are strangers to and unfamiliar with our institutions and our laws should pass through a certain probation, at the end of which, before attaining the coveted prize, they must give evidence of their fitness to receive and to exercise the rights of citizens as contemplated by the Constitution of the United States.

After writing against other sections of the bill, he continues:

I do not propose to consider the policy of this bill. To me the details of the bill seem fraught with evil. The white race and the black race of the South have hitherto lived together under the relation of master and slave—capital owning labor. Now, suddenly, that relation is changed, and as to ownership capital and labor are divorced. They stand now each master of itself. In this new relation, one being necessary to the other, there will be a new adjustment, which both are deeply interested in making harmonious. Each has equal power in settling the terms, and if left to the laws that regulate capital and labor it is confidently believed that they will satisfactorily work out the problem. Capital, it is true, has more intelligence, but labor is never so ignorant as not to understand its own interests, not to know its own value, and not to see that capital must pay that value.

This bill frustrates this adjustment. It intervenes between capital and labor and attempts to settle questions of political economy through the agency of numerous officials whose interest it will be to foment discord between the two races, for as the breach widens their employment will continue, and when it is closed their occupation will terminate.

He concludes with praise of the Emancipation Proclamation and the Thirteenth Amendment, which abolished chattel slavery. Finally, he writes:

I will cheerfully cooperate with Congress in any measure that may be necessary for the protection of the civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process, under equal and impartial laws, in conformity with the provisions of the Federal Constitution.

Congress overrode the president’s veto on 1866-04-09, making the Act law. This was the first time Congress overturned a presidential veto.

Second Trump administration on birthright citizenship

For more details on the second Trump administration, see Both Trump administrations - markwiemer.com.

Executive Order 14160

On 2025-01-20, the first day of his second term, Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” The Order quoted the Citizenship Clause. The Order then stated that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.” Next, the Order introduced the administration’s interpretation of the Citizenship Clause:

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The Order’s policy, in summary, was “that no department or agency of the United States government shall issue documents recognizing United States citizenship” to individuals meeting the criteria above. The Order was future-dated, stating its policy “shall apply only to persons who are born within the United States after 30 days from the date of this order.”

Several parties filed separate lawsuits arguing that the Order was unconstitutional, and multiple universal injunctions nullifying the Order were granted. On 2025-03-13, the Trump administration appealed to the Supreme Court, consolidating the cases into Trump v. CASA, Inc. and arguing that the injunctions were illegal. (On a personal note, this CASA was originally short for Central American Solidarity Association. The CASA program I volunteer for is unrelated: I’m a Court Appointed Special Advocate.) On 2025-06-27, the Supreme Court struck down the injunctions, reinstating the Order. The original question of birthright citizenship was sent back to lower courts. That same day, the American Civil Liberties Union (ACLU) filed Barbara v. Trump, requesting a new injunction. On 2025-07-10, that injunction was granted, and the Order was again nullified. On 2025-09-26, the Trump administration appealed to the Supreme Court with Trump v. Barbara. On 2026-06-30, the Supreme Court struck down the Order as unconstitutional.

Background

History of immigration and nationality law in the United States - there was little concept of an illegal immigrant through the mid-1800s, as the United States had an open border policy until the late 1800s, when anti-Chinese sentiment grew, a series of federal laws were passed, and the Supreme Court decided United States v. Wong Kim Ark.
Naturalization Act of 1790
Naturalization Act of 1795
Alien and Sedition Acts - 1798, including the Alien Enemies Act
1867 - 39th Congress - Library of Congress - The “Debates of Congress” section contains the Congressional Globe records. Of particular note:
- Session 1, part 1, PDF page 499, Globe page 497, section “Protection of Civil Rights”
Civil Rights Act of 1866 - vetoed by President Andrew Johnson, overruled by Congress and enacted in 1866
Fourteenth Amendment to the United States Constitution - 1868
Burlingame Treaty - 1868, granted China the “most favored nation” status. Amended via Angell Treaty of 1880.
Page Act of 1875
Angell Treaty of 1880 - regulated immigration from China
Chinese Exclusion Act - 1882
Immigration Act of 1882
United States v. Wong Kim Ark - 1898, where the Supreme Court held that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China” became “at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.”
Immigration Act of 1891
Chinese Exclusion Repeal Act - 1943
Immigration and Nationality Act of 1965

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