The American Civil Liberties Union, ACLU, and several other immigrant rights organizations filed a lawsuit on Monday with a New Hampshire District Court which claims that a Trump administration executive order ending birthright citizenship for babies born in the US to parents who entered the country illegally is unconstitutional.
The lawsuit contends that the executive order contradicts the 14th Amendment of the US Constitution, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”.
Since the 1898 decision in Wong Kim Ark, this clause has been interpreted as granting citizenship to all babies born in the US, regardless of citizenship status or eligibility of parents. That being said, the US Supreme Court has changed longstanding interpretations of the Constitution before, with a well-known example being the 2022 decision in Dobbs v Jackson Women’s Health Organization which overturned the 1973 decision of Roe v Wade which recognized a constitutional right to privacy that prevented states from banning abortion.
Although the interpretation that the 14th Amendment protects birthright citizenship is a much older and arguably more fundamental constitutional principle, it is possible that the principle could be reinterpreted, given the significant number of judges that Trump appointed during his first presidency, including a third of the current Supreme Court.
The Trump administration argues that the 14th Amendment “has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof”. The administration cites the lack of availability of birthright citizenship to certain categories of individuals present in the US, including individuals whose parents are in the US temporarily on tourist, student, or work visas.
Unless a court intervenes, the executive order will take effect on February 19, forbidding federal agencies from issuing citizenship documents to babies born to parents not lawfully present in the US.
The executive order at issue was one of several impactful orders signed on the first day of Trump’s administration, including the declaration of a national border emergency at the southern border due to illegal immigration.
Immigration was a central policy focus of Donald Trump on the campaign trail, and he has vowed to “carry out the largest domestic deportation operation in American history”.
