Over two dozen states, cities, and immigration organizations filed lawsuits challenging President Trump’s executive action addressing birthright citizenship. Mr. Trump’s action is facing extensive constitutional challenges. Suits identify the Fourteenth Amendment of the Constitution as the basis for the lawsuits. That amendment states all children born in the United States are given U.S. citizenship.

UPDATE: On January 23, 2024, a Federal judge paused enforcement of this executive action signed by President Trump, calling it “blatantly unconstitutional.”

The challenges are likely leading to the first major U.S. Supreme Court case to be considered under Mr. Trump’s current presidency. Appeals will proceed from the First US Circuit Court of Appeals. In this district, all judges are Democratic appointees.

Historically, the U.S. Supreme Court has upheld birthright citizenship. A federal Law passed by Congress prior to the adoption of the Fourteenth Amendment originally established birthright citizenship for all children born on U.S. soil. The Fourteenth Amendment was ratified in 1868 and has consistently been upheld.

Lawsuits filed are asking for a preliminary order to block the Trump executive action before steps to implement the policy begin. In his executive action, Mr. Trump orders federal agencies to stop issuing documents recognizing U.S. citizenship to babies born on U.S. soil whose parents do not have a legal basis to be in the country or if the mother is under a temporary visa. The action currently takes effect on children born in the U.S. starting 30 days after the executive order issuance.

The cornerstone of Mr. Trump’s policy relies on the phrase “subject to the jurisdiction thereof” used in the amendment. In defense of the proposed policy, supporters state children of undocumented immigrants are not subject to U.S. jurisdiction and therefore should not be considered citizens, per the Constitution. Those opposing the proposed policy state the language will not be supported in courts. The phrase is aimed at children of foreign diplomats and situations where a foreign country has invaded the U.S. and is partially occupying a section of the country.

Navigating the U.S. immigration system is challenging, particularly during times of change. Contact us to work with an experienced attorney to ensure you get the right advice for your particular situation based on the current laws.

Birthright Citizenship U.S. Constitution