Eighteen states, the District of Columbia and the city of San Francisco are suing Donald Trump to stop his order unraveling birthright citizenship, in a legal battle that is expected to go to the Supreme Court.
“The president chose to start his second term by knocking down one of our country’s foundational standing rights and disregarding our nation’s founding documents, a terrifying tone to set for the rest of his term,” California Attorney General Rob Bonta said at a press conference.
“Make no mistake, we’re a nation of immigrants,” said Bonta, who was born in the Philippines.
Trump’s order targets a core American concept of citizenship, seeking to redefine the protections under the 14th Amendment. His order calls on excluding the children of undocumented immigrants and the children of immigrants living in the U.S. under temporary visas from automatically being granted citizenship.
The 50-page lawsuit, filed in Massachusetts, asks for a federal judge to immediately halt implementation of the executive order before it takes effect. The complaint notes the ugly national history of racist denial of civil rights to Black slaves that led to the 14th Amendment, which guarantees full citizenship to anyone born on U.S. soil — and points to the 1898 Supreme Court decision in United States v. Wong Kim Ark reaffirming that.
“Overturning this 127-year precedent is contrary to our American values and a ruthless attack on newborns and future generations of Americans. Ending birthright citizenship would impede their integration and their assimilation into society, their educational and economic future. And that hurts all of us,” San Francisco City Attorney David Chiu said, warning that Trump’s policy would create a permanent “underclass.”
Chiu had told NOTUS on Friday that his office was gearing up to make this kind of legal challenge.
The lawsuit brought together the attorneys general of California, Colorado, Connecticut, Delaware, D.C., Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Rhode Island, Vermont and Wisconsin. That list includes nearly every Democrat in that position across the country.
Trump’s order could have immediate implications, because it further states that the federal government will no longer “issue documents recognizing United States citizenship” for those deemed ineligible under its new interpretation of the 14th Amendment.
It empowers the federal government to reject passports and Social Security cards to children of undocumented immigrants. During Tuesday’s press conference, Bonta noted that the policy would also prevent children who were born in the United States from qualifying for housing and food-assistance programs — and longer term, it would stop them from working legally, voting, serving on juries or even running for certain government offices.
“I won’t allow our president to willfully violate the U.S. Constitution and violate the rights of U.S. citizens and get away with it,” he said.
Bonta said the 30-day delay built into the wording of the executive order “works in our favor,” because it could allow a judge to stop it from having any impact on Americans before it goes into effect.
Legal scholars who on Monday night discussed Trump’s executive order with NOTUS noted that the policy change is likely to be halted in the short term.
“I think this will be immediately enjoined,” Dan Urman, who teaches law and politics at Northeastern University, told NOTUS. “It’s a consensus view, a really mainstream view, that if you want to get rid of birthright citizenship you need to amend the Constitution.”
Urman said he expects any case to make its way to the Supreme Court. But he was doubtful the court, even with its 6-3 conservative majority, would uphold the order.
“It’s firmly embedded in our Constitution and our culture. There are 7 to 9 votes on the court for this position,” he said.
The nationwide effort by AGs was preceded by a legal challenge filed in New Hampshire on Monday night by the American Civil Liberties Union on behalf of Indonesian and Latin American communities.
Trump’s move not only comes in direct conflict with the 14th Amendment of the U.S. Constitution, which established 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,” but also past Supreme Court interpretations of birthright citizenship.
The Supreme Court has previously interpreted the Constitution’s exemptions for birthright citizenship to be much narrower — like for children of foreign diplomats.
Michael LeRoy, an immigration expert at the University of Illinois Urbana-Champaign, told NOTUS that Trump’s new interpretation of the amendment is an extreme misreading that has slowly been gaining traction by conservative ideologues.
“It’s not been the view of the amendment since 1866, when it was first proposed. This is a theory that conservative scholars have been talking about for more than 50 years, and it’s an academic theory, but that’s all it is,” he said.
“It has no constitutional basis or authority,” LeRoy said. “It really speaks to the fact that this is so out of the norm.”
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Jose Pagliery is a reporter at NOTUS.