Birthright citizenship is a constitutionally protected right in the United States. If you are born in the United States, you are automatically a citizen of the country. This has been the tradition in the United States for the last 150 years enshrined by the Fourteenth Amendment. But on January 20, 2025, President Donald Trump decided to try to end this right. The Executive Order while calling the “privilege of United States Citizenship is a priceless and profound gift” also called on citizenship to be defined as citizens “only if they have at least one parent who is a U.S. citizen or legal permanent resident.”
On January 23, 2025, a federal judge who had been appointed by President Ronald Reagan, reacted to it by saying “I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear.” That was Judge John Coughenour. He asked where were the lawyers when this decision to sign the order was made.
The last time the U.S. Supreme faced this issue squarely, it affirmed that birthright citizenship applies to everyone born in the U.S., notwithstanding the legal status of their parents. In United States v. Wong Kim Ark, the court in 1898 held that Mr. Wong Kim Ark, is a U.S. citizen by birth even though his Chinese parents were not U.S. citizens. For a detailed review of the circumstances surrounding the case, listen to an NPR podcast on this issue. Neither the congress nor a U.S. president can take away such fundamental right.
In response to President Trump’s Executive Order, six lawsuits have been filed claiming that the President’s order violates the Fourteenth Amendment and federal citizenship laws. The problem with the Executive Order which is outlined by Joseph Mead, a special litigation counsel at Georgetown is “Our plaintiffs are facing irreparable harm in the psychological harm that they have of not knowing the status of their children, children who will be born over the coming weeks and months.” He also said that for the children born in the United States when neither parent is a citizen or a lawful permanent resident, the Executive Order has the potential to render the children stateless. Statelessness means they would be vulnerable, isolated, there would be no designated path to any sort of legal status for them, and governments may be indifferent to them.
As of right now, the 9th U.S. Circuit Court of Appeals rejected the administration’s request for an emergency order putting on hold a nationwide injunction. It was issued by a federal judge in Seattle and blocks the order. The Court said that emergency relief is rare and that it must be truly necessary to “prevent immediate irreparable harm”. They added that the Government did not make the truly necessary showing to the Court.
The three-judge panel was of a Trump appointee, a George W. Bush appointee, and an appointee of Jimmy Carter. They also set down that there will be arguments in June of 2025. This gives both sides time to gather the evidence to argue the case. According to Reuters, “Democratic state attorneys general, immigrant rights advocates and others have filed a series of lawsuits alleging that Trump’s executive order violates the citizenship clause of the U.S. Constitution’s 14th Amendment, which has long been understood to recognize that virtually anyone born in the United States is a citizen.”
There is more. The 4th U.S. Circuit Court of Appeals also rejected the administration’s request for an order putting on hold a nationwide injunction by a federal judge who also concluded that the order was unconstitutional. The Court stated that the federal government recognized birthright citizenship for children born to undocumented and non-permanent residents, but also that it would cause chaos. What is worrying however is that the Supreme Court can and probably will have the final word on this.
The reason? The Supreme Court automatically has federal jurisdiction. Generally, only the Supreme Court can reverse their own decisions and their decisions are virtually final UNLESS they decide to hear a case that could potentially overrule one of their old rulings OR a constitutional amendment is passed. The latter has happened only six times. From the Supreme Court website: “When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.”
More than 100 cases have been filed against the president’s executive orders, but it remains to be seen if birthright citizenship will make it all the way to the Supreme Court, but as of now, the injunction stands until June 2025.