Just after being sworn in, President Trump issued an executive order ending "birthright citizenship." This prompted numerous legal challenges from states and advocacy organizations. As has been widely covered, a federal judge in Seattle, Washington, promptly issued a stay of the order for 14 days while the parties prepare to submit briefs.
But no judge has yet issued a ruling on the merits, and President Trump has vowed to appeal any loss in court. Is there a chance of a federal court upholding the EO?
Constitutional and Federal Law on Birthright Citizenship
Birthright citizenship is in the 14th Amendment. It provides: "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.”
Congress has also codified birthright citizenship in federal law. In 8 U.S.C. § 1401, Congress made "a person born in the United States, and subject to the jurisdiction thereof" nationals and citizens of the United States at birth.
This provision was in direct response to the U.S. Supreme Court's decision in Dred Scott v. Sandford in 1857, which held that Black people were not and could not become United States citizens.
Since the passage of the 14th Amendment in 1866, the law has clearly been that all people born on U.S. soil, with the exception of children of diplomats and invading armies, are U.S. citizens. Diplomats, unlike undocumented immigrants, are not subject to U.S. laws.
This is an established view of the 14th Amendment. In 1995, for example, a Republican member of Congress introduced The Citizenship Reform Act of 1995, which would similarly have ended birthright citizenship. However, the bill went nowhere, partially due to concerns that it would have been unconstitutional if passed.
What Is the Trump Administration's Argument?
The Trump administration's argument questions when a person is "subject to the jurisdiction" of the United States. According to this argument, children of undocumented migrants are more like the children of invading soldiers than children born of lawful immigrants.
No court has ever read the Fourteenth Amendment this way. However, Judge James C. Ho, a federal appellate judge who sits on the Fifth Circuit Court of Appeals, has recently expressed some nuance to birthright citizenship.
In an interview with South Texas School of Law Professor Josh Blackman, Judge Ho said: "No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be.”
A similar argument has been put forth on using the Alien Enemies Act to deploy the military in immigration enforcement actions. We wrote about that argument previously.
Should any federal court allow the executive order to stand, the reasoning would likely follow similar lines. Namely, that:
- Defining "invasion" is a non-justiciable political question
- The president is able to determine when the U.S. is being invaded
- Children of undocumented immigrants can be labeled as children of "invading aliens" and are thus excluded from the birthright citizenship
However, it's important to note that both Judge Ho and Blackman have previously written that the 14th Amendment grants birthright citizenship to children of undocumented immigrants based on a plain reading of the 14th Amendment.
Legal Proceedings So Far
The lawsuit brought by Washington, Arizona, Oregon, and Illinois was the first to receive a hearing. Semi-retired Judge John C. Coughenour, a 1981 appointee of President Ronald Reagan, heard the case.
Minutes into the hearing, Judge Coughenour interrupted to note that "I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one."
Judge Coughenour added that the EO was "blatantly unconstitutional" and issued a 14-day stay without any written explanation.
While this was not a determination on the merits, it's safe to say the Trump administration will have an uphill battle in that particular case. The next scheduled hearing is on February 6.
Another hearing in a related case is set for February 5 at the federal district court in Greenbelt, Maryland. This lawsuit was brought by Court Appointed Special Advocates (CASA), a nonprofit that represents children who have suffered abuse. Judge Coughenour's stay of the order will still be in effect at that time.
What To Expect Moving Forward
President Trump has pledged to appeal the Washington case. However, since he did not appeal the stay, his comments presumably indicate he is anticipating a loss in that case and will appeal the final determination.
If federal courts uniformly reject the Trump administration's interpretation of the Fourteenth Amendment, perhaps no appeal will be filed. However, if a federal court does uphold the EO, particularly a federal court of appeals, then it is almost a certainty the U.S. Supreme Court would take up the case.
Related Resources
- Aliens and Nationality: Deportable Aliens (FindLaw's Learn About the Law)
- Former President Donald Trump’s Alien Enemies Act Immigration Plan: Can He Do It? (FindLaw's Law and Daily Life)
