Table of Contents
Washington DC:
US President Donald Trump has been denounced by a coalition of Democratic states and civil rights groups over his plan to end birthright rights in the United States. Several separate lawsuits came within hours of Trump taking office and quickly unveiled a phalanx of executive orders that he hopes will reshape U.S. immigration.
The first two cases were filed by the American Civil Liberties Union, immigrant groups and an expectant mother in the hours after Trump signed the executive order, launching his administration’s first major lawsuit.
The two other lawsuits were filed by 22 Democratic-led states, along with the District of Columbia and the city of San Francisco, in federal courts in Boston and Seattle. The cases alleged that the president had overstepped his authority and violated the U.S. Constitution by attempting to eliminate the automatic grant of citizenship to anyone born on U.S. soil.
If Trump’s order is upheld, it would deny the right to citizenship to more than 150,000 children born annually in the United States for the first time, the office of Massachusetts Attorney General Andrea Joy Campbell said.
“President Trump does not have the authority to take away constitutional rights,” she said in a statement.
What is Birthright Citizenship?
Anyone born in the United States is considered a citizen at birth, which stems from the Citizenship Clause of the 14th Amendment that was added to the U.S. Constitution in 1868.
The amendment states: “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 Immigration and Nationality Act of 1952 also defines citizens and includes similar language.
The 14th Amendment was confirmed in the U.S. Constitution in 1868, after the four years of the American Civil War, to overturn the Supreme Court’s Dred Scott v. Sandford decision that denied basic rights to African Americans. The previous ruling stated that enslaved people were not U.S. citizens and therefore could not expect any protection from the federal government or the courts.
The U.S. Supreme Court affirmed in 1898 in Wong Kim Ark v. United States that birthright law applies to the children of immigrants. Wong, born to Chinese immigrants in the US, was denied entry when he returned to the US from a visit to China. Wong successfully argued that because he was born in the U.S., his parents’ immigration status had no bearing on the application of the 14th Amendment in his case.
The case affirmed that, regardless of race or the immigration status of one’s parents, all children born in the United States were entitled to all the rights that citizenship provided.
However, the Supreme Court has not addressed whether the Citizenship Clause applies to U.S.-born children of people living in the United States illegally.
What does Trump’s executive order say?
Donald Trump’s order stated that persons born in the United States are not entitled to automatic citizenship if the mother was in the country unlawfully and the father was not a citizen or lawful permanent resident. It also stated that citizenship would be denied to those whose mothers were lawfully but temporarily in the United States, such as those on student or tourist visas, and whose fathers were not citizens or lawful permanent residents.
Trump has complained about foreign women visiting the United States for the purpose of giving birth and granting U.S. citizenship to their offspring.
According to a U.S. Department of Homeland Security estimate, there were an estimated 11 million illegal immigrants in America as of January 2022, a figure some analysts now put at 13 to 14 million. Their US-born children are considered US citizens by the government.
Losing their citizenship would prevent these individuals from accessing federal programs such as Medicaid health insurance and, as they grow older, from legally working or voting, the states said in the lawsuits.
Could Trump’s order overturn birthright citizenship?
According to legal experts, birthright citizenship cannot be terminated by an executive order as it will inevitably lead to lawsuits.
“He is doing something that will upset a lot of people, but ultimately this will be decided by the court… This is not something he can decide alone,” said Saikrishna Prakash, a constitutional expert and professor at the University’s law faculty of Virginia. This is evident from a report by the BBC.
Mr. Prakash noted that while Trump could direct employees of federal agencies to interpret citizenship more narrowly, this would trigger legal challenges from anyone whose citizenship is denied. This could lead to a lengthy lawsuit that ultimately reaches the U.S. Supreme Court.
A constitutional amendment could end birthrightism, but it would also require a two-thirds vote in both the House of Representatives and the Senate, and approval by three-quarters of U.S. states. Republicans have a 53-47 majority in the Senate and a 220-215 majority in the House of Representatives, meaning the US Grand Old Party (GOP) does not have the required numbers in either chamber.
Cases against Trump’s order
Three of the four lawsuits challenging Trump’s order were filed in Massachusetts and New Hampshire. Any rulings by judges in those New England states would be reviewed by the Boston-based 1st U.S. Circuit Court of Appeals, the only federal appeals court whose active judges are all Democratic appointees, according to a Reuters report.
Four states have filed a separate case in Washington state, over which the San Francisco-based 9th US Circuit Court of Appeals has jurisdiction. U.S. District Judge John Coughenour in Seattle has scheduled a hearing for Thursday on whether to issue a temporary restraining order blocking implementation of Trump’s order.
A fifth lawsuit was filed in federal court in Maryland by a group of pregnant women and immigrant rights groups, including CASA.
The various lawsuits argue that Trump’s executive order violated the right enshrined in the Citizenship Clause of the 14th Amendment to the U.S. Constitution, which provides that anyone born in the United States becomes a citizen considered.
The complaints point to the 1898 U.S. Supreme Court ruling in United States v. Wong Kim Ark, a ruling that held that children born in the United States to noncitizen parents are entitled to U.S. citizenship. Plaintiffs challenging the order include a woman living in Massachusetts identified only as “O. Doe,” who is in the country on temporary protected status and is due to give birth in March.
Temporary Protected Status is available to people whose home countries have experienced natural disasters, armed conflict or other extraordinary events and currently covers more than 1 million people from 17 countries.
There are also several other lawsuits pending that challenge aspects of Trump’s other early executive actions.
The National Treasury Employees Union, which represents federal government employees across 37 agencies and departments, filed a lawsuit late Monday challenging an order Trump signed that makes it easier to fire thousands of federal agency employees and replace them with political ones loyalists.