WASHINGTON – Two groups of advocates – a coalition of 18 states and a collection of immigration groups led by the American Civil Liberties Union – have filed lawsuits challenging President Donald Trump’s executive order to halt the automatic granting of citizenship to children born in the United States.
Trump signed his order to deny citizenship to children whose mothers were unlawfully present in the United States when they were born and the father wasn’t a citizen or legal permanent resident, or when the mother’s presence was lawful but temporary and the father wasn’t a citizen or lawful permanent resident. The order was part of a series that sought to bolster security along the southern border.
But legal experts said the order is in conflict with the 14th Amendment to the 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 and of the state wherein they reside.”
John Yoo, a Berkeley Law professor who was a top Justice Department official in the George W. Bush administration, called Trump’s executive order “highly symbolic” but said it surprised him because its legal foundation is so shaky.
“This one, I think, is the most legally tenuous, and it’s going to invite a huge fight that could tie up the administration in knots,” Yoo said Tuesday during a media briefing organized by the conservative Federalist Society.
To win, Yoo said, Trump needs the Supreme Court to overturn an 1898 decision that seems to uphold the right to citizenship for those born in the United States.
“I think the administration will lose,” Yoo said.
The 18 Democratic-led states, along with the District of Columbia and city of San Francisco, filed their lawsuit Tuesday in Massachusetts federal court seeking to block Trump’s order.
“This fundamental right to birthright citizenship, rooted in the 14th Amendment and born from the ashes of slavery, is a cornerstone of our nation’s commitment to justice,” New York Attorney General Letitia James said in a statement. “President Trump’s attempt to undermine the fundamental right to birthright citizenship is not just unconstitutional, it is profoundly dangerous.
The states comprise California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Rhode Island, Vermont and Wisconsin.
The ACLU filed its lawsuit late Monday in New Hampshire federal court seeking to block Trump’s order based on the harm it could harm an immigrant community of Indonesians and others in that state.
“Denying citizenship to U.S.-born children is not only unconstitutional − it’s also a reckless and ruthless repudiation of American values,” Anthony Romero, ACLU executive director, said in a statement. “This order seeks to repeat one of the gravest errors in American history, by creating a permanent subclass of people born in the U.S. who are denied full rights as Americans.”
Trump and other Republicans have sought to end birthright citizenship because of a concern immigrants sometimes deliver children in the United States to gain a toehold to remain. Trump’s order, to take effect in the next 30 days, directed the Social Security Administration to no longer recognize the children as citizens and the State Department to stop issuing them passports.
The constitutional provision was ratified in 1868, after the Civil War, and upheld by the Supreme Court in 1898.
“Birthright citizenship is a cornerstone of our democracy,” Theo Oshiro, co-executive director of the advocacy group Make the Road New York, said in a statement. “To deny their children the same basic rights as all other children born in the United States is an affront to basic values of fairness, equality, and inclusivity.”
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