Attorneys general from 22 states sued Tuesday to block President Donald Trump’s move to end a century-old immigration practice known as birthright citizenship guaranteeing that U.S.-born children are citizens regardless of their parents’ status.
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Trump’s roughly 700-word executive order, issued late Monday, amounts to a fulfillment of something he’s talked about during the presidential campaign. But whether it succeeds is far from certain amid what is likely to be a lengthy legal battle over the president’s immigration policies.
Birthright citizenship means anyone born in the U.S. is a citizen, regardless of their parents’ immigration status. People, for instance, in the United States on a tourist or other visa or in the country illegally can become the parents of a citizen if their child is born here.
It’s been in place for decades and enshrined in the 14th Amendment to the Constitution, supporters say. But Trump and allies dispute the reading of the amendment and say there need to be tougher standards on becoming a citizen.
The order questions that the 14th Amendment extends citizenship automatically to anyone born in the United States.
The 14th Amendment was born in the aftermath of the Civil War and ratified in 1868. It says: “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.”
Trump’s order excludes the following people from automatic citizenship: those whose mothers were not legally in the United States and whose fathers were not U.S. citizens or lawful permanent residents; people whose mothers were in the country legally but on a temporary basis and whose fathers were not citizens or legal permanent residents.
It goes on to bar federal agencies from recognizing the citizenship of people in those categories. It takes effect 30 days from Tuesday, on Feb. 19.
The 14th Amendment did not always guarantee birthright citizenship to all U.S.-born people. Congress did not authorize citizenship for all Native Americans born in the United States, for instance, until 1924.
In 1898 an important birthright citizenship case unfolded in the U.S. Supreme Court. The court held that Wong Kim Ark, who was born in San Francisco to Chinese immigrants, was a U.S. citizen because he was born in the country. After a trip abroad, he had faced denied reentry by the federal government on the grounds that he wasn’t a citizen under the Chinese Exclusion Act.
But some advocates of immigration restrictions have argued that while the case clearly applied to children born to parents who are both legal immigrants, it’s less clear whether it applies to children born to parents without legal status.
The issue of birthright citizenship arose in Arizona — one of the states suing to block Trump’s order — during 2011 when Republican lawmakers considered a bill that would have challenged automatic birthright citizenship. Supporters said then that the goal wasn’t to get every state in the nation to enact such a law, but rather to bring the dispute to the courts. The bill never made it out of the Legislature.
Eighteen states, plus the District of Columbia and San Francisco sued in federal court to block Trump’s order.
New Jersey Democratic Attorney General Matt Platkin said Tuesday that presidents might have broad authority but they are not kings.
“The president cannot, with a stroke of a pen, write the 14th Amendment out of existence, period,” he said.
Connecticut Attorney General William Tong, a U.S. citizen by birthright and the nation’s first Chinese American elected attorney general, said the lawsuit was personal for him.
“The 14th Amendment says what it means, and it means what it says —- if you are born on American soil, you are an American. Period. Full stop,” he said. “There is no legitimate legal debate on this question. But the fact that Trump is dead wrong will not prevent him from inflicting serious harm right now on American families like my own.”
Not long after Trump signed the order, immigrant rights groups filed suit to stop it.
Chapters of the American Civil Liberties Union in New Hampshire, Maine and Massachusetts along with other immigrant rights advocates filed a suit in New Hampshire federal court.
The suit asks the court to find the order to be unconstitutional. It highlights the case of a woman identified as “Carmen,” who is pregnant but is not a citizen. The lawsuit says she has lived in the United States for more than 15 years and has a pending visa application that could lead to permanent status. She has no other immigration status, and the father of her expected child has no immigration status either, the suit says.
“Stripping children of the ‘priceless treasure’ of citizenship is a grave injury,” the suit said. “It denies them the full membership in U.S. society to which they are entitled.”
In addition to New Jersey and the two cities, California, Massachusetts, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont, and Wisconsin joined the lawsuit to stop the order.
But If the courts do not block the order, babies born to women living legally, but temporarily, in the United States — such as people studying on a student visa or workers hired by high-tech companies — will not automatically be recognized by the federal government as U.S. citizens if the father is also not a permanent resident. Aides to Mr. Trump had told reporters on Monday morning that the order would apply to “children of illegal aliens born in the United States.” In fact, the language in the order Mr. Trump signed, titled “Protecting the Meaning and Value of American Citizenship,” goes much further.
The executive order regarding birthright citizenship says that right will be denied for babies born to parents who are not citizens or permanent residents with green cards, including women who are “visiting on a student, work or tourist visa” if the father is not a citizen or a legal permanent resident. In that case, the order says, “no department or agency of the United States government shall issue documents recognizing United States citizenship.”
There are serious questions about how Mr. Trump’s administration would impose such a dramatic change in policy.
Currently, the citizenship of babies born in the United States is documented in a two-step process.
First, the state or territorial government will issue a birth certificate confirming where and when the birth took place. The birth certificate does not include any information about the immigration status of the baby’s parents.
Second, when that baby (or the parents, on the child’s behalf) applies for a passport, the birth certificate showing that the baby was born on U.S. soil is enough to prove citizenship. No other documentation is required.
Mr. Trump’s executive order indicates that in 30 days, all federal agencies will be required to confirm the immigration status of the parents before issuing documents like a passport.
Left unclear, however, is how that would be put into practice.
One option would be for state agencies to check the immigration status of parents and include that information on birth certificates. Then, when passports are requested, the federal government would be able to determine which babies qualify for automatic citizenship.
It could take years, however, for states to put in place a system that checks the immigration status of all parents — assuming they are willing to do so. The federal government could establish guidelines for the required information, but it would most likely be up to the states to decide how and whether to gather that data from parents when they issue a birth certificate.
If the states do not overhaul the birth certificate process, the federal government could seek to enforce Mr. Trump’s order by requiring people applying for passports to present both a birth certificate and proof of their parents’ citizenship status when they were born.
That could become extremely cumbersome, legal experts said, particularly for people with complicated family dynamics or missing legal documents.
Several White House officials did not respond to questions seeking clarification about how the order might be carried out.
Birthright citizenship in the United States was put in place after the Civil War to allow Black people to be citizens. The 14th Amendment says that “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.” Before the amendment was ratified in 1868, even free Black men and women could not become citizens.
The Trump administration has indicated that it plans to harness various tools to restrict those who seek legal entry into the country. Mr. Trump has long supported changes to what is called the “public charge” rule, which would deny entry into the United States if a potential immigrant is likely to need to use public services like food or housing assistance.
The president could also try to restrict the right to travel for some groups of people. In another executive order he signed on Monday, Mr. Trump directed officials to develop a list of countries that would be subject to a travel ban similar to the one he imposed during his first term in office.
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