When accorded automatic birthright citizenship based on birth on American soil, a newborn's status is generally unaffected by the legal status or citizenship of that individual's mother or father.
Throughout much of the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship, although the United States did not grant citizenship to all black former slaves until the passage of the Civil Rights Act of 1866, which was subsequently confirmed by the Fourteenth Amendment. American Indian tribal members are not covered specifically by the constitutional guarantee, but they were made citizens automatically by the Indian Citizenship Act of 1924.
"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."
Senator Howard, who wrote this Citizenship clause commented,
"This amendment which I have clarified is simply declaratory of what I regard as the law of the land already..[It] does not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of person. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."
People born in most of the territories of the United States are also citizens from birth. As of 2008, the only exception is that people born in American Samoa are only U.S. nationals at birth and not citizens, though they may later reside in the U.S. and apply for citizenship.
In Elk v. Wilkins, , the United States Supreme Court emphasized that being born in the territory of the United States is not sufficient for citizenship. Those who wish to become citizens must be subject to the jurisdiction of the United States. Children born domestically to American Indians were actually under the jurisdiction of the tribe, which itself had no allegiance to the United States, and was therefore not under the jurisdiction of the United States.
Subsequently, Native Americans were granted U.S. citizenship by Congress in the Indian Citizenship Act of 1924.
Because of this rule, unusual cases have arisen whereby children have been born overseas to American men (and non-American women), brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s.. The final element has taken an especially significant importance in these cirumstances, as once the child has reached 18, the father is forever unable to establish his son's paternity to deem his child a natural-born citizen.
This distinction between unwed fathers and mothers was constructed and reaffirmed by Congress in response to concerns that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries. In many cases, American servicemen passing through in wartime may not have even realized they had fathered a child. The Supreme Court, by 5-4 majority in Tuan Anh Nguyen v. INS, established the constitutionality of this gender distinction.
becomes, at the time of his birth, a citizen of the United States, by virtue of the first clause of the 14th amendment of the Constitution. Children born to foreign diplomats or, hypothetically, to hostile enemy forces or born on U.S. territory while it is under the control of a foreign power, are not considered subject to U.S. jurisdiction and therefore are not citizens at birth. The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark.
The Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the 14th Amendment, although it has generally been assumed that they are.
In 2005, a bill was introduced in the House of Representatives, called the Citizenship Reform Act of 2005 (H.R. 698), in an attempt to amend the Immigration and Nationality Act so that the domestically born children of foreign nationals would not be subject to U.S. jurisdiction, and thus would not be granted automatic citizenship, unless at least one parent was a U.S. citizen or lawful permanent resident. This bill never reached the floor of the House and died in committee when the 109th Congress adjourned at the end of 2006. Bills similar to H.R. 698 have been introduced in previous Congresses, but none of them was ever acted upon either.
On April 192007, Representative Nathan Deal of Georgia, the author of H.R. 698, introduced an almost identical bill in the 110th Congress—H.R. 1940, entitled the Birthright Citizenship Act of 2007. This bill, like its predecessors, has yet to be acted upon in Congress.
Some legislators, unsure whether such acts of Congress would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment. House Joint Resolution 46 in the 109th Congress proposed such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.