S-304-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Lindsey Graham (R-SC)
What it does
This bill would amend the Immigration and Nationality Act to define who qualifies as "subject to the jurisdiction" of the United States for purposes of birthright citizenship. Under the bill, a person born in the United States would only receive automatic citizenship at birth if at least one parent is a U.S. citizen or national, a lawful permanent resident living in the U.S., or a non-citizen serving on active duty in the U.S. armed forces. The bill would apply only to persons born after its enactment date, leaving existing citizens unaffected.
Who benefits
Children born in the U.S. to at least one citizen, lawful permanent resident, or active-duty military member — their citizenship status would be explicitly codified in statute. Advocates of reduced unauthorized immigration who argue the bill closes an incentive for unauthorized entry. Immigration enforcement agencies that would have a clearer statutory definition to apply. Children of lawful permanent residents and military members who gain added legal certainty about their citizenship.
Who is hurt
Children born in the U.S. to two parents who are both unauthorized immigrants or temporary visa holders (e.g., tourist, student, or work visas) — they would no longer receive automatic citizenship at birth. Parents in those categories who currently rely on a U.S.-born child's citizenship as a potential future pathway to legal status. Immigration attorneys and advocates who represent affected families. Countries with large diaspora communities in the U.S. on temporary visas, whose U.S.-born children would lose citizenship. Stateless children, if parents have no recognized nationality, could face complex legal status questions.
Supporters argue
Supporters argue that the 14th Amendment's phrase "subject to the jurisdiction thereof" was never intended to grant citizenship to children of people who entered the country without authorization or on temporary visas, citing the Senate debate record from 1866 in which Sen. Lyman Trumbull stated the clause applied to those "not owing allegiance to anybody else." They contend that Congress — not the courts — has the authority under the Naturalization Clause (Art. I, §8, cl. 4) to define the terms of citizenship by statute, and that this bill exercises that power to align the law with the original meaning of the 14th Amendment.
Opponents argue
Opponents argue that the Supreme Court held in United States v. Wong Kim Ark (1898) that the 14th Amendment grants citizenship to virtually all persons born on U.S. soil, regardless of their parents' immigration status, and that this interpretation has been the settled law for over 125 years. They contend that because birthright citizenship is established directly by the Constitution's text, Congress cannot narrow it by statute — only a constitutional amendment could do so — making this bill likely unconstitutional on its face under the Citizenship Clause of the 14th Amendment.
Constitutional context
The Citizenship Clause of the 14th Amendment (§1) grants citizenship to all persons "born or naturalized in the United States, and subject to the jurisdiction thereof." The central dispute is whether Congress can define "subject to the jurisdiction" by statute to exclude children of unauthorized immigrants and temporary visa holders, or whether that phrase's meaning is fixed by the Constitution as interpreted in United States v. Wong Kim Ark (1898). The Naturalization Clause (Art. I, §8, cl. 4) gives Congress power to establish a "uniform Rule of Naturalization," but opponents argue birthright citizenship is not naturalization and thus falls outside that power.
Checks and balances
Congress would gain authority to define the scope of birthright citizenship through statute; the primary check is judicial review, as federal courts — ultimately the Supreme Court — would determine whether Congress has the constitutional power to narrow the 14th Amendment's Citizenship Clause by ordinary legislation.
Historical precedent
Earlier versions of the Birthright Citizenship Act were introduced in multiple Congresses (e.g., 2009, 2011, 2015) but never passed; a related executive order issued in January 2025 was blocked by federal courts on constitutional grounds, with judges citing United States v. Wong Kim Ark (1898).