Presidents ‘are not kings’: Trump faces legal headwinds to birthright citizenship order
Analysis
Pushback against President Donald Trump’s aggressive immigration orders gathered steam Thursday with a court hearing the first of a set of lawsuits filed by a coalition of at least 22 US states to block his bid to end birthright citizenship. Many legal experts see the crackdown on immigrants as unconstitutional and predict a potentially protracted legal dispute.
FRANCE24/AFP
By: Nicole TRIAN
Issued on: 23/01/2025
People line up against a border wall as they wait to apply for asylum after crossing the border from Mexico, Tuesday, July 11, 2023, near Yuma, Ariz. © Gregory Bull, AP
A federal judge in Seattle on Thursday temporarily blocked US President Donald Trump’s executive order ending the constitutional guarantee of birthright citizenship, calling it “blatantly unconstitutional”.
It was the first setback among a spate of lawsuits filed by multiple US states and advocacy groups seeking to challenge the order.
On Monday, Trump ordered federal agencies to refuse to recognise the citizenship of children born in the United States if they do not have at least one parent who is a citizen or legal permanent US resident.
With the ink on Trump’s numerous executive orders barely dry, 22 US states, including New York, New Jersey, Connecticut, Hawaii and California, came together in a dramatic show of political defiance, serving Trump with a barrage of lawsuits.
The cities of San Francisco and Washington, DC, joined the states in filing a complaint in the federal district court in Massachusetts.
Separate lawsuits were filed by immigrants’ rights groups and a pregnant woman who has lived in the United States for 15 years and is seeking permanent residency.
The United States grants automatic citizenship to anyone born on US soil, codified in the 14th Amendment of the Constitution.
A federal judge in Seattle on Thursday temporarily blocked US President Donald Trump’s executive order ending the constitutional guarantee of birthright citizenship, calling it “blatantly unconstitutional”.
It was the first setback among a spate of lawsuits filed by multiple US states and advocacy groups seeking to challenge the order.
On Monday, Trump ordered federal agencies to refuse to recognise the citizenship of children born in the United States if they do not have at least one parent who is a citizen or legal permanent US resident.
With the ink on Trump’s numerous executive orders barely dry, 22 US states, including New York, New Jersey, Connecticut, Hawaii and California, came together in a dramatic show of political defiance, serving Trump with a barrage of lawsuits.
The cities of San Francisco and Washington, DC, joined the states in filing a complaint in the federal district court in Massachusetts.
Separate lawsuits were filed by immigrants’ rights groups and a pregnant woman who has lived in the United States for 15 years and is seeking permanent residency.
The United States grants automatic citizenship to anyone born on US soil, codified in the 14th Amendment of the Constitution.
Text from Section 1 of the 14th Amendment of the US Constitution
© Library of Congress
"For more than 150 years, our country has followed the same basic rule: babies who are born in this country are American citizens,” New Jersey Attorney General Matthew Platkin said at a press conference after the complaint was filed on Tuesday.
He described Trump’s order as “an extreme and unprecedented act”.
“Presidents in this country have broad power. But they are not kings," he said.
New York Attorney General Letitia James reiterated her counterpart’s sentiments, saying that birthright citizenship is a fundamental right, part of “the great promise of our nation … that everyone born here is a citizen of the United States, able to achieve the American dream”.
The American Civil Liberties Union (ALCU) in a statement called the order “unconstitutional” and “a reckless and ruthless repudiation of American values".
Signed just hours into his second presidency, Trump’s order seeks to end birthright citizenship, which is the automatic citizenship granted to anyone born in the US, regardless of their parents’ immigration status.
Under the order, federal agencies – starting from next month – will cease issuing citizenship documents to children of undocumented mothers or mothers in the country on temporary visas, such as tourists or foreign students, if the father is not a US citizen or permanent resident.
Despite Trump’s steps to unilaterally scrap birthright citizenship, most experts agree that his powers are limited as only the US Supreme Court can determine how it applies.
Alex Nowrasteh, vice president for economic and social policy studies at the Cato Institute, told FRANCE 24 that the challengers to Trump’s executive order were likely to be successful in the courts.
“There is no legal basis for this order,” Nowrasteh said.
“They (those challenging the order) have more than 400 years of legal precedent on their side, the text of the 14th amendment, other US statutes, and numerous court decisions over the last 200 years,” he added.
"For more than 150 years, our country has followed the same basic rule: babies who are born in this country are American citizens,” New Jersey Attorney General Matthew Platkin said at a press conference after the complaint was filed on Tuesday.
He described Trump’s order as “an extreme and unprecedented act”.
“Presidents in this country have broad power. But they are not kings," he said.
New York Attorney General Letitia James reiterated her counterpart’s sentiments, saying that birthright citizenship is a fundamental right, part of “the great promise of our nation … that everyone born here is a citizen of the United States, able to achieve the American dream”.
The American Civil Liberties Union (ALCU) in a statement called the order “unconstitutional” and “a reckless and ruthless repudiation of American values".
Signed just hours into his second presidency, Trump’s order seeks to end birthright citizenship, which is the automatic citizenship granted to anyone born in the US, regardless of their parents’ immigration status.
Under the order, federal agencies – starting from next month – will cease issuing citizenship documents to children of undocumented mothers or mothers in the country on temporary visas, such as tourists or foreign students, if the father is not a US citizen or permanent resident.
Despite Trump’s steps to unilaterally scrap birthright citizenship, most experts agree that his powers are limited as only the US Supreme Court can determine how it applies.
Alex Nowrasteh, vice president for economic and social policy studies at the Cato Institute, told FRANCE 24 that the challengers to Trump’s executive order were likely to be successful in the courts.
“There is no legal basis for this order,” Nowrasteh said.
“They (those challenging the order) have more than 400 years of legal precedent on their side, the text of the 14th amendment, other US statutes, and numerous court decisions over the last 200 years,” he added.
‘Bedrock of American identity’
Birthright citizenship has been protected under the US constitution since 1868 and was instrumental in granting citizenship rights to African-Americans. The US Supreme Court last examined the issue of birthright citizenship in 1898, when it ruled in favour of a US-born child of Chinese immigrants who won a challenge after being denied citizenship.
Trump’s attempts to eliminate birthright citizenship would need a two-thirds vote in both the US House and Senate to successfully change the Constitution.
Supporters of Trump’s hardline immigration stance argue that birthright citizenship promotes illegal immigration and encourages pregnant women to enter the US illegally to have so-called “anchor babies”.
The belief that pregnant women exploit birthright citizenship has helped fuel longstanding arguments made by Trump that the children of unauthorised immigrants should be deported, along with their parents, even if they were born in the US.
According to recent figures from the Pew Research Center, about 4.4 million children born in the US and under the age of 18 were living with an undocumented immigrant parent in 2022. Of adults born in the US, an estimated 1.4 million have undocumented parents.
Dr Tara Watson, the director of the Center for Economic Security and Opportunity at the Brookings Institute and author of the book, “The Border within: The economics of Immigration in an Age of Fear,” said she is confident birthright citizenship will continue to exist.
“This order is mainly to create fear and signal hostility to second-generation Americans,” Watson said. “Birthright citizenship is such a bedrock of American identity and law that even creating the conversation is a really strong and disorienting statement.”
And only about a third of Americans favour bringing an end to automatic citizenship.
In an AP-NORC poll last week, 51 percent said they opposed changing the Constitution so people born on US soil are not automatically granted citizenship if their parents are here illegally. Some 28% said they favoured revoking that right while the rest did not have strong feelings on the subject.
‘Repel, repatriate or remove’: Broadening scope for deportations
Since being sworn in, Trump has left little doubt about whether he intends to follow through on his promise to “repel, repatriate or remove" migrants.
The US president has fast-tracked immigration changes that have left swaths of immigrants across the country fearful of the future.
Trump has suspended the programme for US refugee resettlement for at least three months and demanded a review of security that could see travel bans enforced on travelers from certain countries, something critics say would be a resurrection of the notorious “Muslim ban” from his first term.
In another sweeping move, Trump lifted existing restrictions on Tuesday to empower the Immigration and Customs Enforcement (ICE) agency and the Customs and Border Protection agency to conduct arrests at schools, churches and other sensitive locations previously deemed off limits.
An estimated 733,000 school-age children who are in the US illegally, according to the Migration Policy Institute, could be targeted for arrest at schools.
Some 43 percent of Americans support the idea of deporting illegal immigrants while 37 percent oppose it, according to an AP-NORC poll this week. But nearly two-thirds oppose separating children from their parents if they have been detained for entering illegally and 55 percent oppose deporting immigrants if it separates them from their US citizen children.
Watson said that many of the bold statements made by the US administration were designed to test the limits of executive power “legally and politically, both on immigration and a range of issues”.
“Allowing arrests in sensitive locations is intended to create a climate of fear and uncertainty,” Watson said.
“I’ve been expecting some large-scale immigration raids,” she said, adding the next few weeks still held a lot of uncertainty. “We’ll have to see how things play out.”
Trump’s executive order on birthright citizenship is slated to take effect from February 19, and legal experts appear to agree that lengthy court battles culminating in a US Supreme Court hearing is almost certain.
Trump will have to battle legal head winds, fending off a storm of lawsuits and a potentially wider public backlash from those concerned that any meddling with constitutional rights sets a dangerous precedent.
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