CA Attorney General Sues Trump Administration Over Birthright Citizenship Executive Order

California Attorney General Rob Bonta filed a lawsuit along with 17 other states’ Attorneys General on Monday against President Donald Trump over his executive order seeking to end birthright citizenship, claiming that it violates the 14th Amendment.

Birthright citizenship, where anyone born in the United States automatically becomes a citizen, has been defended for decades as being part of the 14th Amendment. The ACLU has said that the Citizenship Clause of the Amendment, 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,” protects birthright citizenship.

However, the practice has also been argued against by those favoring a tighter border and reducing illegal immigration. Many have contended that the practice has been heavily abused for decades, with many migrants getting around legal immigration pathways by having an “anchor baby” to stay in the U.S. legally. Others have noted that only 33 countries in the world, including the United states, have unrestricted birthright citizenship, with another 32 having restricted birthright citizenship of some kind. And in recent years, there has been a growing legal argument stating that birthright citizenship isn’t protected by the 14th Amendment.

With the worst border crisis in American history occurring under the Biden administration, Trump ran a presidential campaign focused heavily on border and illegal immigrant reform. Trump made many campaign promises, including sealing the border with Mexico to counter drug smuggling and crime, beginning a mass deportation program of illegal aliens, ending Biden’s “catch and release” policy, reimplementing his “remain in Mexico” policy, and ending birthright citizenship. Following his election in November, Trump then vowed to make many of his promises laws on day one through executive orders.

On Monday, President Trump was true to his word, signing seven executive orders on immigration and border policies. This included ending birthright citizenship, meaning that the children of migrants in the U.S. either illegally or with a temporary visa will not automatically be made American citizens. In his Executive Order signed on Monday, Trump argued that the 14th Amendment has never been interpreted to extend citizenship to everyone born in the country.

“But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” the order said. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’  Consistent with this understanding, the Congress has further specified through legislation that ‘a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth.”

Trump’s birthright citizenship Executive Order

The Executive Order then clarified the new policy:

“It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

The new Executive Order was almost immediately challenged later in the day by the ACLU, which sued the Trump administration in a New Hampshire federal court. It was then followed up on Tuesday by Bonta’s lawsuit, which also included the Attorneys General of 17 other states, the District of Columbia, and the city of San Francisco. In his argument against the Executive order, Bonta said that all children born on U.S. soil are automatically granted U.S. citizenship under the 14th Amendment. He further stated that Trump’s order not only violates the 14th Amendment, but also Section 1401 of the Immigration and Nationality Act. In addition, Bonta and the others asked the court to block the Executive Order from going into effect while it is being played out in court.

“The President’s executive order attempting to rescind birthright citizenship is blatantly unconstitutional and quite frankly, un-American,” Bonta said Tuesday. “As home of Wong Kim Ark, a San Francisco native who fought – successfully – to have his U.S. citizenship recognized, California condemns the President’s attempts to erase history and ignore 125 years of Supreme Court precedent. We are asking a court to immediately block this order from taking effect and ensure that the rights of American-born children impacted by this order remain in effect while litigation proceeds. The President has overstepped his authority by a mile with this order, and we will hold him accountable.

“If allowed to stand, the order would strip tens of thousands of children born each year of their ability to fully and fairly be a part of American society as rightful citizens, with all the benefits and privileges. These children would lose their most basic rights and be forced to live under the threat of deportation. They would lose eligibility for a wide range of federal benefits programs. They would lose their ability obtain a Social Security number and, as they age, to work lawfully. And they would lose their right to vote, serve on juries, and run for certain offices.

“The executive order would also directly harm California and other states, causing them to risk federal funding for vital programs that they administer, such as Medicaid and the Children’s Health Insurance Program; these programs are conditioned on the citizenship and immigration status of the children they serve. In addition, states would be required — on little notice and at considerable expense — to immediately begin modifying their operation and administration of benefits programs to account for this change by February 19, when the order goes into effect.”

As an Executive Order challenging birthright citizenship has never been attempted before, many legal experts have said that they are now in unchartered waters. Some have noted that Trump has been fully preparing for legal challenges against many of his orders, as seen by entire sections of his order explaining how his order didn’t violate the 14th Amendment.

“All of the Attorneys General spelled it out as best as they could in that lawsuit,” explained Constitutional lawyer Fernando Morgan to the Globe on Tuesday. “Same with the ACLU. They had their suits ready to go, with some people on standby to make any last second tweaks after reading the order to cross all the T’s and dot all the I’s. And then there was Trump’s team who knew that legal challenges were certain and gave their argument in the order. Every side knew.

“On the legal side of things here, well, they chose their courts carefully. The Attorneys General chose the Massachusetts U.S. District court because of lawyers friendly towards them. Same with the ACLU in New Hampshire. But, can they hold, or will Trump prevail? Everyone right now has their arms up in the ‘I don’t know’ gesture. People have underestimated Trump and his team before and lost. We may very well see that again here.”