When President Trump came into office, one of his first actions was to sign an Executive Order seeking to end birthright citizenship (called Protecting the Meaning and Value of American Citizenship). The President’s Order applies to children born of noncitizen mothers who were unlawfully present, or who were present in the U.S. on a temporary visa, at the time of birth. (It does not apply, however, if the father of the child was a U.S. citizen or lawful permanent resident at the time of the child’s birth.)
Constitutional and Legal Foundation
The concept of birthright citizenship, meaning that anyone born in the United States is a citizen upon birth, is set forth in the United States Constitution, at Section 1 of the 14th Amendment, which 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…”
The United States Supreme Court has held that this provision applies even to those born to noncitizen parents (U.S. v. Wong Kim Ark, 1898).
Nationwide Challenges
President’s Trump Executive Order has been challenged across the nation, including by 22 States Attorney General. Several federal district courts have found the order to be unconstitutional and have issued nationwide injunctions banning its enforcement. These decisions have been appealed by the Trump Administration. Additionally, the administration has challenged the ability of district court judges to impose nationwide bans on the order, arguing in favor of applying injunctions on individual cases.
Supreme Court Procedural Ruling
On Friday, the Supreme Court ruled to limit the ability of district court judges to grant nationwide injunctions in these matters (Trump v. CASA, Trump v. Washington, and Trump v. New Jersey). The ruling will become effective in 30 days.
It is important to note that the Supreme Court did not affirm the constitutionality of the President’s Order to end birthright citizenship. It was silent on this constitutional question. Their ruling was procedural in nature. Nevertheless, the decision allows the Order to be enforced against individuals who have not filed for injunctive relief and leaves in doubt whether some children born to noncitizen parents in the United States will be granted citizenship when the 30 day period has expired.
Recommended Next Steps:
We cannot predict when or how the Supreme Court will rule on the core birthright citizenship question. Until then, we recommend that any of our clients who expect to give birth in the U.S. speak with litigation counsel to seek an injunction, or join class action litigation, for protection against the order. Please contact FordMurray to be put in contact with experienced counsel.
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