Washington DC:
US President Donald Trump has been sued by a coalition of Democratic-leaning states and civil rights groups over his plan to end birthright citizenship in the United States. Several separate lawsuits came within hours after Trump took office and quickly unveiled a phalanx of executive orders he hopes will reshape American immigration.
The first two cases were filed by the American Civil Liberties Union, immigrant organizations and an expectant mother in the hours after Trump signed the executive order, kicking off the first major court fight of his administration.
The two other lawsuits were brought 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 asserted that the President had overstepped his authority and violated the US Constitution by trying to eliminate the automatic granting of citizenship to anyone born on US soil.
If allowed to stand, Trump’s order would for the first time deny more than 150,000 children born annually in the United States the right to citizenship, said the office of Massachusetts Attorney General Andrea Joy Campbell.
“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 derives from the Citizenship Clause of the 14th Amendment which was added to the US 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 US Constitution in 1868, after the four years of the American Civil War, to overturn the Supreme Court decision Dred Scott v. Sandford, which denied basic rights to African Americans. The previous judgement said that enslaved people were not US citizens and, therefore, could not expect any protection from the federal government or the courts.
The US Supreme Court affirmed that birthright citizenship applies to the children of immigrants in 1898 in the Wong Kim Ark v United States ruling. Wong, who was born to Chinese immigrants in the US, was denied re-entry when he returned to the US from a visit to China. Wong successfully argued that because he was born in the US, his parents’ immigration status did not affect 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 of the rights that citizenship offered.
However, the Supreme Court has not addressed whether the Citizenship Clause applies to US-born children of people who are in the United States illegally.
What Does Trump’s Executive Order Say?
Donald Trump’s order declared that individuals 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 declared citizenship would be denied to those whose mother was in the United States lawfully but temporarily, such as those on student or tourist visas, and whose father was not a citizen or lawful permanent resident.
Trump has complained about foreign women visiting the United States for the purpose of giving birth and conferring US citizenship on their offspring.
There were an estimated 11 million illegal immigrants in America in January 2022, according to a US Department of Homeland Security estimate, a figure that some analysts now place at 13 million to 14 million. Their US-born children are considered by the government to have US citizenship.
Losing out on citizenship would prevent these individuals from having access to federal programs like Medicaid health insurance and, when they become older, from working lawfully or voting, the states said in the lawsuits.
Can Trump’s Order Overturn Birthright Citizenship?
According to legal experts, birthright citizenship can not be ended by an executive order as it is bound to end up in litigation.
“He’s doing something that’s going to upset a lot of people, but ultimately this will be decided by the courts…This is not something he can decide on his own,” Saikrishna Prakash, a constitutional expert and University of Virginia Law School professor said, according to a report by BBC.
Mr Prakash noted that while Trump can order employees of federal agencies to interpret citizenship more narrowly, it would trigger legal challenges from anyone whose citizenship is denied. This could lead to a lengthy court battle ultimately winding up at the US Supreme Court.
A constitutional amendment could do away with birthright citizenship, but that would also require a two-thirds vote in both the House of Representatives and the Senate and approval by three-quarters of US states. Republicans have a 53 to 47 majority in the Senate and a 220 to 215 majority in the House, meaning America’s grand old party (GOP) does not have the required number in either chamber.
Cases Against Trump’s Order
Three of the four lawsuits against Trump’s order were filed in Massachusetts and New Hampshire. Any rulings from judges in those New England states would be reviewed by the Boston-based 1st US Circuit Court of Appeals, the only federal appeals court whose active judges are all Democratic appointees, according to a report by Reuters.
Four states filed a separate case in Washington state, which the San Francisco-based 9th US Circuit Court of Appeals has jurisdiction over. US District Judge John Coughenour in Seattle has scheduled a Thursday hearing on whether he should issue a temporary restraining order blocking enforcement 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 U.S. Constitution’s 14th Amendment which provides that anyone born in the United States is considered a citizen.
The complaints cite the US Supreme Court’s 1898 ruling in United States v. Wong Kim Ark, a decision holding that children born in the United States to non-citizen parents are entitled to U.S. citizenship. The plaintiffs challenging the order include a woman living in Massachusetts identified only as “O. Doe” who is in the country through 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 conflicts or other extraordinary events and currently covers more than 1 million people from 17 nations.
Several other lawsuits challenging aspects of Trump’s other early executive actions are also pending.
The National Treasury Employees Union, which represents federal government employees in 37 agencies and departments, late on Monday filed a lawsuit challenging an order Trump signed that makes it easier to fire thousands of federal agency employees and replace them with political loyalists.
