EO follows recent congressional legislation seeking to revoke birthright citizenship in the Territories

The Trump Administration has issued a new executive order targeting birthright citizenship, which, among other things, focuses on the question of citizenship for anyone “born in a territory … of the United States.” It specifically targets anyone born in a territory “where citizenship is not conferred by Federal statute.” Under current congressional statute, people born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are recognized as citizens, while those born in American Samoa are not. The Executive Order follows the Supreme Court’s decision in Trump v. Barbara, which rejected the Administration’s attempt to deny birthright citizenship to children born in the States. It also comes on the heels of new legislation introduced in Congress that would end birthright citizenship in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands starting January 1, 2027. 

“This troubling Executive Order expresses the view that citizenship in U.S. territories is ‘conferred by Federal statute,’ while drawing a clear distinction between ‘the United States’ and “a territory of the United States.’ This suggests and perhaps even invites Congress to move ahead with legislation such as the ‘End Birthright Citizenship For Territories Act,’” said Neil Weare, Co-Director of Right to Democracy. “This is a clear escalation. What began as a legal theory advanced by successive administrations—claiming that the Constitution’s guarantee of birthright citizenship does not apply in U.S. territories—is now being invoked as a roadmap for Congress to limit the right to citizenship in these communities.”

Weare added: “Rather than accept the constitutional limits recognized by the Court, this Administration and some in Congress are looking to the Territories as a constitutional back door—one made possible by the undemocratic legal framework governing them.”

Right to Democracy and its attorneys filed an amicus brief in Trump v. Barbara on behalf of 21 current and former elected officials and judges from each U.S. territory whose views on politics and status range the spectrum. The brief argued that neither Congress nor the President may use the territorial relationship to evade the Citizenship Clause and unilaterally deny citizenship to people born in the Territories.

“Administrations past and present believe the federal government can do in the Territories what the Constitution prevents it from doing in the States,” Weare said. “That theory depends on the same dangerous premise underlying the Insular Cases: that fundamental constitutional protections can be switched on or off for people in the Territories at the discretion of distant federal officials who are not politically accountable to them.”

The reported executive action would mark the latest in a rapidly escalating series of efforts to target citizenship in the Territories. On the day the Supreme Court decided Barbara, Vice President JD Vance said on national television that limiting birthright citizenship in the Territories was “a great idea” and confirmed that the Administration was “certainly looking at that.” Soon afterward, Rep. Morgan Griffith introduced the End Birthright Citizenship for Territories Act, which would revoke statutory birthright citizenship in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands for people born beginning in 2027.

Rep. Griffith expressly grounded his bill in the Territory Clause and the Insular Cases, explaining his view that Congress possesses the power not only to grant constitutional rights in the Territories, but also “to take them away.” The new Executive Order reflects a similar approach and understanding.

“Regardless of one’s political party or preferred status, this action is evidence of a federal government that thinks it can do whatever it wants in the territories,” said Adi Martínez-Román, Co-Director of Right to Democracy. “Citizenship is the immediate target, but the larger danger is a territorial framework that invites federal officials to treat fundamental rights as privileges that they may grant, restrict, or withdraw without the consent of the people affected.”

An executive order would be especially alarming in the Northern Mariana Islands, where citizenship was expressly negotiated as part of the Covenant establishing its political relationship with the United States. The Covenant provides that certain fundamental terms - including birthright citizenship - cannot be changed without mutual consent. Any attempt to alter those guarantees unilaterally would disregard not only constitutional limits but also the commitments on which the relationship was founded.

“The Supreme Court has already declared this is unconstitutional. It is just as unconstitutional in the territories as it is in the states - period,” Martínez-Román said. “These attacks expose the territorial framework for what it is: a system of unaccountable, unilateral power. All this draws greater attention to the urgent need to dismantle a colonial system that permits fundamental rights to depend on the whims of Congress rather than the self-determination of our people.”

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Additional Information

• An FAQ on the End Birthright Citizenship for Territories Act is available here.

• The territorial officials’ amicus brief in Trump v. Barbara is available here. 

• Here is an article by Neil Weare that appeared in SCOTUSblog with additional background on the history of the federal government claiming the power to deny citizenship to people born in overseas territories.

Right to Democracy brings together people across the political-status spectrum to confront the undemocratic colonial framework governing the U.S. territories and advance a future grounded in democracy, equity, and self-determination.