President Trump’s August 6th Executive Order represents an escalation of recent actions claiming that the federal government has the power to unilaterally turn citizenship on and off in U.S. territories. The EO rests on the dangerous assumption that because a “territory of the United States” is not “in the United States,” citizenship in U.S. territories is “conferred by Federal statute” rather than guaranteed by the Citizenship Clause of the Fourteenth Amendment. The EO explains that this rests on the idea that some kind of “extraterritorial fiction” applies to people in U.S. territories, an idea grounded in the Insular Cases.  Ultimately, under this framework the EO asserts an extraordinarily broad view of federal power over citizenship in U.S. territories, that what Congress gives, Congress can take away.

Nonetheless, although the EO’s language is troubling, it would not immediately change federal law related to citizenship by birth in a U.S. territory, which is recognized based on federal statute in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands, and for the children of U.S. citizens born in American Samoa (children of non-citizens in American Samoa are labeled “non-citizen” U.S. nationals under federal statute). 

Rather, it declares it “the policy of the United States” that federal agencies will not recognize the children of non-U.S. citizens born “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.” With Congress currently considering the “End Birthright Citizenship for Territories Act,” the EO could encourage congressional action to limit birthright citizenship in any U.S. territory starting as soon as January 1, 2027. Ultimately, the broad language of the EO together with the poorly-drafted language of the new legislation means both raise as many questions as they provide answers. 

For more on the Executive Order, see our statement here, and additional FAQs here.