Within hours of his inauguration Monday, President Donald Trump issued an executive order to outlaw birthright citizenship for the children of undocumented immigrants born in the United States. The order, which is set to take effect Feb. 19, seeks to fundamentally change the principle that every baby born in the country is a U.S. citizen.
Trump’s order was almost immediately met with legal challenges — one from Massachusetts Attorney General Andrea Campbell, and more from civil rights organizations and immigrant advocacy groups.
Adriana Lafaille, an immigrant rights lawyer with the ACLU of Massachusetts, says there is “no question” that the executive order is an unlawful measure. What it represents, she says, is a larger threat to the civil rights of immigrants living in the United States.
“This measure, while unlikely to be allowed to stand, is part of a broader effort to make people feel unwelcome, to divide Americans and to instill fear in immigrant communities that are already being targeted in so many other ways,” Lafaille told GBH News.
Campbell filed a joint lawsuit Tuesday in the U.S. District Court of Massachusetts with 17 other states, the District of Columbia and the City and County of San Francisco, challenging the order that “flagrantly violates” the constitutional rights of U.S.-born children, according to a statement from Campbell’s office.
“Birthright citizenship in our country is a guarantee of equality, born out of a collective fight against oppression, slavery and its devastating harms. It is a settled right in our Constitution and recognized by the Supreme Court for more than a century,” Campbell said in a statement. “President Trump does not have the authority to take away constitutional rights, and we will fight against his effort to overturn our Constitution and punish innocent babies born in Massachusetts.”
Campbell’s lawsuit followed two other New England–based complaints. The national American Civil Liberties Union filed a lawsuit Monday along with ACLU chapters in Massachusetts, Maine and New Hampshire. Another complaint was filed early Tuesday by the Boston-based Lawyers for Civil Rights on behalf of an expectant mother whose baby may no longer be eligible for citizenship under the order, as well as two local nonprofits.
“This would create an inferior class of children born to immigrants who are not entitled to the same rights, privileges and protections as all other U.S. citizens,” Iván Espinoza-Madrigal, of Lawyers for Civil Rights, told GBH News. “This is exactly what the Constitution forbids by making clear that citizenship runs with birth on American soil.”
The complaints are asking judges to stop the executive order before it goes into effect. It criticizes Trump’s order as a dismissal of a principle established for more than 150 years under the 14th Amendment, stating that “all persons born on naturalized in the United States ... are citizens of the United States.” It has repeatedly been interpreted to mean that every child born on U.S. soil is a citizen, with very narrow exceptions for people who aren’t subject to U.S. law, like the children of foreign diplomats.
Trump’s executive order claims that the 14th Amendment has “never been interpreted” to give universal citizenship to everyone born in the United States.
The president does not have the power to amend the Constitution unilaterally through the executive order. Undoing the 14th Amendment would require that a two-thirds majority of the House and Senate, and at least three-quarters of states, approve the change as a constitutional amendment.
Espinoza-Madrigal says the order aims to “upend more than a century of well-established law,” and said that while he believes it’s unlikely the order will be implemented, the message it sends is clear.
“What the Trump administration is doing is sowing chaos,” he said, “and manufacturing a crisis that can clearly be avoided.”
If the point is to scare immigrants — many of whom already fear mass deportations under the new administration — the order is already having an effect, Espinoza-Madrigal said.
“The executive order has scared and destabilized families and communities,” he said, adding that Lawyers for Civil Rights and the other nonprofits represented in the lawsuit — La Colaborativa and the Brazilian Worker Center — have already been fielding inquiries from affected families.
“We’ve also been hearing from hospitals and other institutions asking how this will affect their ability to support expectant mothers and their newborn infants with things as simple as an application for a Social Security number,” he said. “The executive order threatens to change systems and processes that have been in place for decades to support the integration of newborn children into American life. These challenges are going to be insurmountable if the executive order is not blocked.”
Trump signed a number of other executive orders related to immigration on his first day, including declaring a national emergency at the border, prioritizing and expanding the role of the military presence along the country’s national borders and ending asylum entirely.
