One of President Donald Trump’s first moves in office was an executive order repealing birthright citizenship — something he promised to do but didn’t deliver on during his first term. The move, which is almost certainly unconstitutional, would affect more than 11 million undocumented immigrants in the country as well as people in the US on non-immigrant visas, including more than 580,000 people with H1-Bs. The executive order is slated to go into effect 30 days after its announcement, though two lawsuits filed in federal courts could slow or halt its implementation.
Trump floated the idea of doing away with birthright citizenship in 2018. At the time, his critics pointed out that the move would require a constitutional amendment since birthright citizenship is enshrined under the 14th Amendment. “No president can change the Constitution with the stroke of a pen,” Beth Werlin, then-executive director of the American Immigration Council, said at the time. To get around this, Trump’s executive order attempts to reinterpret the 14th Amendment rather than amending or repealing it altogether.
As the order notes, the 14th Amendment grants citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The courts have historically taken “subject to the jurisdiction thereof” to mean anyone who is present in the country, regardless of their immigration status — but Trump’s order claims that the amendment:
does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Put simply, under Trump’s order, the children of most undocumented immigrants wouldn’t be US citizens, nor would the children of people in the country on student, work, or tourist visas. This is more than a reinterpretation of the 14th Amendment — it’s an attempt to do away with the jus soli principle that undergirds US citizenship.
Since the country’s inception, the United States has had jus soli citizenship; anyone born in the country or its overseas territories is a citizen, regardless of their parents’ nationality or immigration status. This is different from jus sanguinis citizenship, under which only people whose parents are nationals of a certain country are granted citizenship. There have been some historical exceptions to jus soli citizenship in the US — most notably, the exclusion of enslaved African Americans and their children, as delineated by the Supreme Court’s decision in the landmark 1857 Dred Scott v. Sandford case. After the end of the Civil War, Congress enacted the 14th Amendment, granting citizenship to anyone born on US soil.
Two lawsuits have already been filed challenging the executive order. The American Civil Liberties Union (ACLU) and a host of other organizations filed a suit in a New Hampshire federal court on Monday night, hours after the order was announced. Attorneys general from 18 states — along with San Francisco and Washington, DC — filed a separate suit on Tuesday in a federal district court in Massachusetts.
“Neither the Constitution nor any federal statute confers any authority on the President,” the ACLU lawsuit reads. The ACLU argues that allowing the executive order to stand “would ‘promot[e] the creation and perpetuation of a subclass’ of children who were born in the United States but lack fundamental legal recognition and face stigma as a result of their novel and uncertain status.” Moreover, the suit claims, the order “will invite persistent questioning of the citizenship of children of immigrants—particularly children of color.”
Both the ACLU lawsuit and the suit filed by 18 states ask the courts to block the executive order before it goes into effect.