U.S. President Donald Trump.
| Photo Credit: Reuters

Indian-American lawmakers have opposed the executive order by U.S. President Donald Trump on changes in birthright citizenship, a move likely to hit not only illegal immigrants from around the world but also students and professionals from India.

On Monday (January 20, 2025,) in the opening hours of his second term as President, Mr. Trump signed an order declaring that future children born to undocumented immigrants would no longer be treated as citizens. The order would extend even to the children of some mothers in the country legally but temporarily, such as foreign students or tourists.

Mr. Trump’s executive order asserts that the children of such non-citizens are not “subject to the jurisdiction” of the United States and thus are not covered by the 14^th Amendment’s longstanding constitutional guarantee.

Indian-American Congressman Ro Khanna said changes in birthright citizenship as done through the executive order would impact newborn babies of not only illegal and undocumented immigrants but also those staying in this country legally, such as on H-1B visas.

The H-1B visa is a non-immigrant visa that allows the U.S. companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. Technology companies depend on it to hire tens of thousands of employees each year from countries such as India and China.

“Trump’s order removes birthright citizenship for children born in the U.S. not just to undocumented parents but to ‘lawful’ immigrants who are temporarily on a student visa, H1B/H2B visa, or business visa. So much for the pretence that the Republicans are for legal immigration,” Mr. Khanna said.

Indians are the main beneficiaries of the H-1B visas, which bring in the best of the talent and brains from across the world. Highly skilled professionals from India walk away with the overwhelming number of H-1B visas — which is Congressional mandate — 6,50,000 every year and another 20,000 for those who received higher education from the U.S.

“No matter what Donald Trump says or does, birthright citizenship has and will be the law of the land. I will fight to protect it at all costs,” Indian American Congressman Shri Thanedar said.

Indian American Congresswoman Pramila Jayapal described it as unconstitutional. “Plain and simple this is unconstitutional and cannot be done with the stroke of a pen. If enacted, it would make a mockery of our country’s laws and the precedents set in the Constitution,” she said.

A coalition of immigration rights groups has challenged this in court and said this is unconstitutional.

‘I like both sides of argument on H-1B’, says Donald Trump

As per the executive order, the U.S. would not give automatic citizenship to newborn babies after February 19, 2025, if one of the parents is not a U.S. citizen or lawful permanent resident.

Also, attorneys general from 22 states sued President Trump in two federal district courts on Tuesday (January 21, 2025) to block the executive order that refuses to recognise the U.S.-born children of unauthorised immigrants as citizens, the New York Times reported.

Eighteen states and two cities, San Francisco and Washington DC, challenged the order in the Federal District Court in Massachusetts, arguing that birthright citizenship under the 14th Amendment is “automatic” and that neither the President nor Congress has the constitutional authority to revise it. Four other states filed a second lawsuit in the Western District of Washington.

The states request immediate relief to prevent the President’s Order from taking effect through both a Temporary Restraining Order and a Preliminary Injunction. “President Trump’s attempt to unilaterally end birthright citizenship is a flagrant violation of our Constitution,” said New Jersey Attorney General Matthew Platkin.

“The President’s executive order attempting to rescind birthright citizenship is blatantly unconstitutional and quite frankly, un-American,” said California Attorney General Rob Bonta.

Ajay Bhutoria, Biden White House Commissioner and Deputy National Finance Chair for the Democratic Party, in a statement, said, the 14th Amendment is not up for negotiation.

“This executive order is not only unconstitutional but also undermines the values of equality and justice that define America,” he said. Mr. Bhutoria urged the South Asian and broader immigrant communities to stand united against policies that threaten the fundamental principles of the Constitution.

“We must work together to ensure that these divisive and unconstitutional actions do not succeed,” he said.

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.

President Donald Trump signs an executive order on birthright citizenship in the Oval Office of the White House on January 20, 2025.
| Photo Credit: AP

Shortly after being sworn in on Monday (January 20, 2025), U.S. President Donald Trump signed an Executive Order cancelling the provision of “citizenship by birth”, which, if unchallenged, could directly affect thousands of Indian professionals working in the U.S. under H-1B and other temporary visas, who hoped to raise their families there.

Mr. Trump also said he planned to levy “100% taxes” on BRICS countries for attempting to move to “non-dollar” transactions, referring to the 10-nation grouping of emerging economies that includes India.

“As a BRICS nation, they’ll have a 100% tariff if they so much as even think about doing what they thought, and therefore they will give it up immediately,” he said, erroneously referring to Spain as a BRICS member.

The grouping at present comprises Brazil, Russia, India, China, South Africa, Egypt, Ethiopia, Indonesia, Iran, and the United Arab Emirates.

In addition, Mr. Trump’s plans to crackdown on undocumented and illegal immigrants could hit about 7.25 lakh Indians, of which nearly 18,000 are already on a “final list for removal” or deportations.

Jaishankar-Rubio meet

As concerns grew in India over Mr. Trump’s announcements, External Affairs Minister S. Jaishankar was set to meet incoming U.S. Secretary of State Marco Rubio to discuss priorities for the India-U.S. bilateral relationship and the Quad.

The one-on-one meeting, which would be Mr. Rubio’s first with any foreign dignitary, was due to take place on Tuesday afternoon in Washington, following a meeting of the Quad Foreign Ministers, including Australia’s Penny Wong and Japan’s Iwaya Takeshi.

The Quad Foreign Ministers are expected to discuss dates for the Quad Summit to be held in India later this year, while during the bilateral meeting Mr. Jaishankar and Mr. Rubio would discuss Mr. Trump’s visit to India and taking forward the strategic partnership, as well as the concerns over immigration and tariffs.

According to the public schedule released by the U.S. State Department for the U.S. Secretary of State’s first day, after he was confirmed by the Senate on Monday, Mr. Rubio will meet State Department employees and then hold talks with all Quad Foreign Ministers. The meeting of the Indo-Pacific grouping, that China has criticised, is significant as it is Mr. Rubio’s first foreign policy engagement.

On Monday, Mr. Jaishankar was accorded a front-row aisle seat right in front of the podium where Mr. Trump took oath.

Mr. Jaishankar’s seat was several rows ahead of the Foreign Ministers of Australia and Japan, both countries that are treaty allies of the U.S.

“[I] attended the Inaugural festivities in Washington this evening, [an] occasion to meet key members of President Trump’s Administration,” Mr. Jaishankar wrote on social media, posting his photographs with members of Mr. Trump’s Cabinet and leaders of the Senate and the U.S. Congress.

Mr. Rubio’s decision to meet the Quad Foreign Ministers first is also important as it comes amid Mr. Trump’s own outreach to China, including an invitation to Chinese President Xi Jinping for the inaugural ceremony on Monday, which Chinese Vice-Premier Han Zheng attended.

Mr. Rubio, known for his tough views on China, has been banned from travelling there and was sanctioned twice by Beijing over his comments criticising Chinese human rights violations in Xinjiang and Hong Kong.

At his confirmation hearing last week, Mr. Rubio said he believed that China was the “most potent and dangerous near-peer adversary [the U.S.] has ever confronted”.

“We welcomed the Chinese Communist Party into the global order, and they took advantage of all of its benefits and they ignored all of its obligations and responsibilities. Instead, they have repressed and lied and cheated and hacked and stolen their way into global superpower status, and they have done so at our expense and at the expense of the people of their own country,” Mr. Rubio said.

The prominence of the Quad Foreign Ministers at the Trump inauguration and in Mr. Rubio’s schedule are believed to be both signal a priority for the Indo-Pacific partnership as well as a pointed message to Beijing.