Trump Faces Multiple Lawsuits Over Birthright Citizenship Executive Order, Can He Proceed With It?

US President Donald Trump is facing legal challenges from a coalition of Democratic-leaning states and civil rights groups over his plan to end birthright citizenship in the United States.

Multiple lawsuits were filed within hours of Trump taking office and quickly unveiling a series of executive orders aimed at reshaping US immigration policy.

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The first two cases were brought by the American Civil Liberties Union, immigrant organisations, and an expectant mother shortly after Trump signed the executive order, initiating the first major court battle of his presidency.

Another set of lawsuits was filed by 22 states led by Democrats, along with the District of Columbia and San Francisco, in federal courts in Boston and Seattle. These cases argue that the President overstepped his constitutional authority by attempting to end the automatic granting of citizenship to anyone born on US soil.

If upheld, Trump's order could deny more than 150,000 children born annually in the US the right to citizenship, according to Massachusetts Attorney General Andrea Joy Campbell's office.

"President Trump does not have the authority to take away constitutional rights," she said in a statement.

What is Birthright Citizenship?

Anyone born in the United States is automatically considered a citizen, as per the Citizenship Clause of the 14th Amendment, ratified in 1868. This clause 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 Immigration and Nationality Act of 1952 similarly defines citizens.

The 14th Amendment was added to the US Constitution after the Civil War, aimed at overturning the Dred Scott v. Sandford decision, which had denied African Americans basic rights, including citizenship. In 1898, the US Supreme Court confirmed that birthright citizenship applied to children born to immigrants in the Wong Kim Ark v United States case, establishing that the children of immigrants, regardless of their parents' immigration status, were entitled to US citizenship.

However, the Supreme Court has not addressed whether the Citizenship Clause applies to children born in the US to parents who are in the country illegally.

What Does Trump's Executive Order Say?

Trump's order asserts that individuals born in the US are not entitled to automatic citizenship if the mother was unlawfully present in the country, and the father was neither a citizen nor a lawful permanent resident. The order also denies citizenship to children born to mothers who were lawfully but temporarily in the US, such as on student or tourist visas, and whose father was not a citizen or lawful permanent resident.

Trump has voiced concerns about foreign women visiting the US to give birth and confer US citizenship on their children.

As of January 2022, the US had an estimated 11 million illegal immigrants, with figures now believed to be between 13 to 14 million. Their US-born children are recognised as US citizens.

The lawsuits argue that denying citizenship would prevent these children from accessing federal programs like Medicaid and, when older, from working legally or voting.

Can Trump's Order Overturn Birthright Citizenship?

Legal experts argue that birthright citizenship cannot be revoked by an executive order and is likely to face prolonged litigation.

"He's doing something that's going to upset a lot of people, but ultimately this will be decided by the courts... This is not something he can decide on his own," said Saikrishna Prakash, a constitutional expert and professor at the University of Virginia Law School, according to a BBC report.

Prakash explained that while Trump can instruct federal agencies to interpret citizenship more narrowly, such a move would prompt legal challenges, potentially leading to a drawn-out court battle, ultimately reaching the US Supreme Court.

A constitutional amendment could eliminate birthright citizenship, but this would require a two-thirds vote in both the House of Representatives and the Senate, plus approval from three-quarters of US states. With Republicans holding a slim majority in both chambers, it would be difficult to secure the necessary votes.

Cases Against Trump's Order

Three of the four lawsuits against Trump's order were filed in Massachusetts and New Hampshire. Rulings from judges in these states would be reviewed by the 1st US Circuit Court of Appeals in Boston, which has a bench of all Democratic appointees, according to Reuters.

A separate case was filed in Washington state, which falls under the jurisdiction of the 9th US Circuit Court of Appeals in San Francisco. US District Judge John Coughenour in Seattle has scheduled a hearing to decide whether to issue a temporary restraining order blocking the enforcement of Trump's order.

A fifth lawsuit was filed in Maryland federal court by a group of pregnant women and immigrant rights organisations, including CASA.

The lawsuits argue that Trump's executive order violates the right granted in the 14th Amendment's Citizenship Clause, which states that anyone born in the US is a citizen. The plaintiffs challenging the order include a Massachusetts woman identified as "O. Doe," who has temporary protected status and is due to give birth in March.

Temporary protected status covers people from countries experiencing natural disasters, armed conflict, or other extraordinary events. It currently applies to over a million people from 17 nations.

Several other lawsuits are pending, challenging other early executive actions by Trump.

The National Treasury Employees Union, which represents federal government workers, also filed a lawsuit challenging another Trump order that makes it easier to fire federal employees and replace them with political loyalists.