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“Blatantly Unconstitutional:” Birthright citizenship is not going anywhere

“Blatantly Unconstitutional:” Birthright citizenship is not going anywhere

by Sarah Pitney

Birthright Citizenship: A Legal Foundation

Let’s start off with the long story short – Donald Trump cannot end birthright citizenship by executive order. Children born in the United States are U.S. citizens, with the only exception being for the children of some diplomats. This has been the law of our country since it was founded (aside from a brief 11-year period from 1857 to 1868) and it is not likely to change any time soon, since it would require an amendment to the Constitution.

Trump’s Executive Order on Birthright Citizenship

Nevertheless, on the first day of the new administration, Trump tried to end birthright citizenship through an executive order. Hours after he took office on January 20, he signed a decree stating that someone born in the US is not a citizen if their mother was undocumented or in lawful but temporary status and their father was not either a lawful permanent resident (green card holder) or a U.S. citizen. For example, the child born in the U.S. to two people who are here studying on student visas would not be a citizen. A child born to a mother with a pending asylum claim and a father who had been granted asylum would not be a citizen. On the other hand, a child born to an undocumented mother and a U.S. citizen father would be a citizen. And any child whose mother is a lawful permanent resident or a U.S. citizen is a citizen, regardless of the father’s status. The executive order would only apply to people born on or after February 19, 2025 (and so would not take away citizenship from people born before that date).

Legal Challenges to the Executive Order

Because the executive order was so obviously a violation of the 14th Amendment, and because it treated the legal status of parents differently based on their gender, at least six lawsuits have been filed so far. The lawsuits were brought by pregnant people, immigrants’ rights organizations, and Democratic states. By January 23, the executive order had been blocked by a federal judge in Seattle, in lawsuit that had been filed by four Democratic states – Arizona, Illinois, Oregon, and Washington State.

Initial Ruling: Blocking the Order

The judge in that case, who was appointed by Ronald Reagan and who has been a judge for forty years, blocked the order immediately after hearing arguments. He said: “I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.” He blocked the order for an initial period of 14 days and scheduled a hearing for February 6 to hear arguments on whether to keep the order blocked for a longer period of time while the case plays out. Based on the judge’s initial statements, it seems almost certain that the order will remain blocked.

What Lies Ahead for Birthright Citizenship

Even if the judge in Seattle somehow changes his mind (which would be shocking, really), there are five other judges who are also hearing this case, and who also have the legal training to understand that Trump’s executive order is blatantly unconstitutional. We think that the executive order will remain blocked for a long time, despite the Trump administration’s statements that they intend to appeal. While their goal is to bring the case before the Supreme Court, it seems likely that the order will not take effect unless and until the Supreme Court makes a decision on it.

For Now Birthright Citizenship Remains Intact

For now (and hopefully forever), birthright citizenship is still in place, and a baby born in the U.S. is a U.S. citizen, regardless of the status of their mother or father. People should not be concerned for their children’s citizenship and should not have any issues with obtaining a birth certificate or passport for their children. While many things are changing under the Trump administration, birthright citizenship is not likely to be one of them.

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