Topline
President Donald Trump’s executive order ending “birthright citizenship”—automatically giving citizenship to anyone born in the U.S.—is now on pause, as a federal judge in Washington on Thursday granted Democratic-led states’ request to block the order while litigation moves forward.
President Donald Trump signs executive orders in the Oval Office on January 20 in Washington, DC.
Getty ImagesKey Facts
Judge John Coughenour called the order “blatantly unconstitutional” in scathing comments from the bench during a Thursday hearing, according to multiple outlets, asking, “where were the lawyers” when it was written.
Trump signed an executive order Monday that revoked the U.S.’s longstanding practice of “birthright citizenship,” instead saying that, starting in 30 days, anyone born to parents who are not citizens or permanent U.S. residents will not automatically be granted citizenship—even if their parents are in the U.S. legally, such as on student visas or work visas.
The ruling is in one of five lawsuits that have so far been filed against the birthright citizenship order, brought by Democratic attorneys general in Washington, Arizona, Illinois and Oregon.
The 14th Amendment of the Constitution 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,” which has long been interpreted to mean anyone born in the U.S. gets citizenship, and states argue changing that interpretation means thousands of U.S.-born people “will be placed into lifelong positions of instability and insecurity as part of a new underclass in the United States.”
Trump and his allies claim the “subject to the jurisdiction thereof” clause means birthright citizenship doesn’t apply to people whose parents aren’t citizens or permanent residents, and the Justice Department argued the states also don’t have standing to challenge the order just because it affects their residents.
Coughenour’s order Thursday doesn’t permanently overturn Trump’s executive order, but pauses it for 14 days while litigation continues on whether the order is lawful.
Crucial Quote
“I have been on the bench for over four decades. I can’t remember another case whether the question presented was as clear,” Coughenour—who was appointed by President Ronald Reagan—said at Friday’s hearing when blocking Trump’s order, as quoted by CNN.
What To Watch For
The other lawsuits challenging Trump’s birthright citizenship order—brought by civil rights groups and other Democratic-led states—are still pending, though a hearing has been scheduled in one of them for February 5. The multiple cases set up the possibility that courts could issue different rulings on the executive order, and it’s likely it will ultimately be left to the Supreme Court to make a final decision on the scope of birthright citizenship.
Big Number
153,000. That’s the number of babies born in the U.S. in 2022 who had two undocumented parents and thus wouldn’t be citizens under Trump’s executive order, the states said in a filing. The actual number of U.S.-born people affected by the order would be much larger, however, as it also applies to a broader range of people whose parents aren’t U.S. citizens or permanent residents, such as children of international students and people who moved to the U.S. on work visas.
Chief Critic
Trump’s interpretation of birthright citizenship—that the 14th Amendment as written excludes giving citizenship to the children of non-citizens or permanent residents—goes against the overwhelming majority of legal experts, as well as Supreme Court precedent. “To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States,” the court wrote in the 1898 case United States v. Wong Kim Ark. Legal experts have broadly decried the interpretation pushed by Trump and others on the right: Former United States Military Academy law professor Margaret Stock described it to NPR in 2018 as a “lunatic fringe argument” and University of Massachusetts, Amherst, professor Rebecca Hamlin told the outlet any lawyer who believes it is “like a unicorn.”
Can Trump Get Rid Of Birthright Citizenship Clause?
Trump’s executive order reinterpreting the 14th Amendment to exclude children of immigrants is the only way that he has a chance to unilaterally change the law. The president could not revoke the birthright citizenship clause entirely, as amending the Constitution to remove the clause would require votes by at least two-thirds of both chambers of Congress, plus approval by at least three-quarters of the states.
Surprising Fact
Trump’s birthright citizenship order is part of his broader aim to reduce immigration, with his Justice Department saying in a court filing the move is an “integral part” of Trump’s effort “to address this nation’s broken immigration system.” The presence of undocumented immigrants “presents significant threats” that “warrant a full panoply of immigration measures,” DOJ attorneys claimed. Studies have found that getting rid of birthright citizenship would actually dramatically increase the number of undocumented immigrants present in the U.S., however, given that thousands of people who would have otherwise been citizens will now be considered undocumented immigrants. A study released by the Migration Policy Institute in September 2010 found that if birthright citizenship ended only for people who have two undocumented parents, there would be 16 million undocumented immigrants by 2050, which is 44% larger than if birthright citizenship stayed in place. Trump’s executive order is broader in scope than that study, which means the actual number of immigrants would likely be even larger.
Key Background
Trump signed the executive order on birthright citizenship on his first day in office after long after long promising he would do so. Yeah, absolutely,” he told “Meet the Press” in December when asked if it was still his plan to “end birthright citizenship on day one.” The president also floated ending birthright citizenship during his 2016 campaign and first presidential term, though he ultimately never ended up taking any action on it. Trump’s birthright citizenship is part of a broader crackdown on immigration that’s expected during his second term. Trump also signed executive orders Monday taking steps like ordering mass deportations, and the president has also suggested taking aims at other immigration programs like family-based visas.
Further Reading
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