Can Trump End Birthright Citizenship? ACLU Sues to Block ‘Unconstitutional’ Order
Donald Trump’s executive order seeking to end birthright citizenship is perhaps his most disturbing — representing a direct challenge to the plain language of the U.S. Constitution. It may also be one of the most straightforward Trump actions to reverse.
Before Day One was over, the American Civil Liberties Union filed suit in federal court seeking to have this order blocked and declared “unconstitutional and unlawful in its entirety.” The ACLU’s court action was buttressed Tuesday by a similar lawsuit filed by a dozen attorneys general from blue states also seeking a permanent injunction of Trump’s order.
ACLU executive director Anthony Romero, introducing the litigation, called Trump’s birthright citizenship order “a reckless and ruthless repudiation of American values.” He added that the order risks repeating “one of the gravest errors in American history,” namely, “creating a permanent subclass of people born in the U.S. who are denied full rights as Americans.”
The executive order, touted as “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP,” seeks to create an ambiguity in the 14th Amendment where there has been none. Adopted after the Civil War, the amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The Trump order tortures the phrase, “subject to the jurisdiction thereof,” to allege that the amendment does not apply to babies born to mothers who are either undocumented or temporarily visiting the U.S., e.g., on a tourist visa, where the father is also not a U.S. citizen or permanent resident. The federal government, per the order, is instructed to stop issuing citizenship documents — including passports and Social Security numbers — to babies born to such couples starting 30 days from the date of the order.
The ACLU suit insists that the Trump order is unlawful on its face, running “afoul of the Constitution and federal statute,” and that it far exceeds the scope of his power, as “neither the Constitution nor any federal statute confers any authority on the president to redefine American citizenship.”
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The lawsuit contends that the Trump order disturbs “constitutional bedrock.” It highlights the 125 year old precedent, U.S. v. Wong Kim Ark. That Supreme Court decision affirmed birthright citizenship in the case of a California man, born to Chinese immigrants in San Francisco, who was wrongly denied reentry to the country after a trip abroad in the wake of the nativist Chinese Exclusion Act, which blocked entry of Chinese nationals. (Birthright citizenship has also been affirmed by statute, in federal laws passed in the 1940s and 50s.)
In modern history, the suit states, the language about being “subject to the jurisdiction thereof” has only been interpreted to exclude the children born to foreign diplomats stationed in the U.S.; you might think of it as a corollary to diplomatic immunity.
The suit’s plaintiffs include pregnant couples without permanent legal status who are expecting babies this spring. They include a DACA recipient (a protected but impermanent status granted to undocumented immigrants brought here as children) as well as asylum seekers, including a couple from Venezuela. That country does not offer consular services in the U.S. meaning, the lawsuit cautions, that their child “may be rendered effectively stateless” at birth.
The ACLU suit lists harms to its plaintiffs, including that these babies will likely be denied SNAP nutrition benefits as well as Medicaid health insurance. (The Trump administration, per his campaign rhetoric, darkly views this as a feature not a bug of the executive order.)
The suit appears to have been in the works for some time, and targeted in its choice of jurisdiction. The suit was filed Monday in a federal district court in New Hampshire. This court answers to the First Circuit Court of Appeals in Boston, the only appeals court whose bench is entirely made up of Democratic appointed jurists. The suit brought Tuesday by the states attorneys general was filed in federal district court in Massachusetts, which also answers to the First Circuit.
While a favorable ruling from the First Circuit appears likely, the Supreme Court, with its arch-conservative supermajority, is no slam dunk. But language in the ACLU complaint appears calibrated to the originalist faction of the Supreme Court, which often seeks to ground its decisions in pre-colonial and even British practice. The “legal background” of the suit defends birthright citizenship as an “ancient and fundamental” principle that “has its roots in English common law.”
Romero, the ACLU leader, appeared to nod to the reality of the Trump-aligned high court, yet insisted that the “overreach” of the citizenship order is “so egregious that we are confident we will ultimately prevail.”
Read the ACLU suit here.