States, civil rights groups sue to stop Trump’s birthright citizenship order

Constitutional scholars said the president’s executive order would upend precedent and is unlikely to pass legal muster.

President Donald Trump’s executive order to end birthright citizenship faced a flurry of legal challenges Tuesday from a bevy of states and civil rights groups, signaling that the effort could be tied up in court and unlikely to take effect next month as planned.

A coalition of 18 states, including New Jersey, New York and California, filed a lawsuit in Massachusetts, saying the order violates the constitutional rights of thousands of children and imposes undue costs on local jurisdictions that would lose federal funding tied to Medicaid and children’s health insurance. The District of Columbia and city of San Francisco also joined that filing.

Another group of states, including Arizona and Washington, filed a separate legal challenge Tuesday afternoon. And the American Civil Liberties Union and Lawyers for Civil Rights filed lawsuits in New Hampshire and Massachusetts, respectively, on behalf of parents whose children would not be eligible for citizenship under Trump’s order.

“The Constitution could not be more clear: citizenship of children born in the United States does not depend on the citizenship of their parents,” New Jersey Gov. Phil Murphy (D) said in a statement. “That principle is fundamental to who we are as a nation and what it means to be an American.”

New York Attorney General Letitia James said Trump’s action “is not just unconstitutional, it is profoundly dangerous.”

Trump signed the executive order shortly after his inauguration Monday. Titled “Protecting the Meaning and Value of American Citizenship,” the order stipulates that his administration will no longer recognize automatic citizenship for children born on U.S. soil to immigrant parents who are in the country without authorization, provided neither parent is a U.S. citizen or legal permanent resident. In his first term, Trump threatened to take similar action but did not follow through.

The order, which Trump said would take effect 30 days from its signing, also bars automatic citizenship for children born to noncitizen parents who are in the country on temporary work, student or tourist visas.

“That’s a good one — birthright,” Trump told reporters, while signing the document. “That’s a big one.”

Legal experts said the sweeping effort runs counter to more than a century of legal precedent and is unlikely to pass constitutional muster.

The plan also faces significant logistical hurdles. The administration plans to enforce Trump’s order by withholding documents, such as passports, from people it deems ineligible for citizenship. The order also says the administration will refuse to accept documents from local or state governments that purport to recognize the citizenship of the children it has deemed ineligible for citizenship.

But the administration hasn’t yet explained who — hospitals, health insurance companies, local or state governments, federal officials or some other authority — would review parents’ legal documents to assess whether their children could become citizens.

Civil liberties organizations have said birthright citizenship is protected under the 14th Amendment of the Constitution. A legal case could ultimately be decided by the Supreme Court, in which conservative justices outnumber liberal ones, 6-3.

When a reporter asked whether the order could be called unconstitutional by a court, Trump responded: “Could be. I think we have good grounds, but you could be right. We’ll find out. It’s ridiculous. … People have wanted to do this for decades.”

Trump falsely said the United States is the only country that offers birthright citizenship. In fact, more than 30 countries do, including Canada, Mexico and the majority of South American nations.

Birthright citizenship was established by the 14th Amendment, passed by Congress in 1868, which includes a clause reading: “All people 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.”

On a call with reporters Monday morning, Trump aides said the executive order stipulates that the administration has authority to ban birthright citizenship because unauthorized immigrants are in the country illegally and, therefore, are not “subject to the jurisdiction” of the United States government.

Trump aides have signaled that the administration’s strategy will be to move quickly to push forward on policy aims, even if they draw legal challenges, calculating that liberal groups will have less money and resources for drawn-out court fights and face more conservative friendly judges, including on the Supreme Court.

Some legal experts have pointed to legal precedent to argue that the Supreme Court has definitively ruled on the question of birthright citizenship and overturning it would represent a more extraordinary reversal than the court’s decision to overturn Roe v. Wade in 2022.

“Birthright citizenship is far deeper and far more fundamental to the functioning of this country than just about anything else,” said Hiroshi Motomura, an immigration law professor at the University of California at Los Angeles.

“Yes, they could overturn it, but that would not only overturn precedent but you’d have to effectively change the constitution to something that it was never meant to be,” Motomura added. “That’s true if you look from an originalist perspective. And it’s true from a policy and democracy point of view. It would just be so far-reaching.”

Julian Calderas, a retired deputy field office director for Immigration and Customs Enforcement, said the Trump administration’s attempt was “really pie in the sky.”

“I don’t know if that’s possible through executive order,” he said. “There’s many other things I’d focus on before that.”

Trump aides indicated that the order would take effect in 30 days. Administration officials have not said whether the order would affect children born to families in which one parent is a citizen and the other is an undocumented immigrant.

How many children the order would affect is also unclear. There are an estimated 11 million undocumented immigrants in the United States, according to government data.

In 2018, the Migration Policy Institute estimated that about 4 million children under 18 were living with at least one parent who was undocumented. About 1.3 million lived with two undocumented parents and 1.8 million lived in families in which one parents was a citizen and the other was not. About 900,000 lived in single-parent households in which the parent was in the country illegally.

Trump has often complained that pregnant individuals from other countries travel to the United States on legal tourist visas to give birth, a practice he calls “birth tourism.” The U.S. does not maintain up-to-date records on the number of children born to women who are visiting the country, so the scale of the phenomenon is difficult to assess. In his first term, the Trump administration imposed rules instructing consular officers to deny visas to women they suspected were traveling to the U.S. to give birth unless the women could prove the travel was medically required and they could afford to pay the costs of hospital care.

Immigration experts said Congress approved the birthright citizenship clause of the 14th Amendment to reverse the Dred Scott v. Sandford decision of 1857 in which the Supreme Court ruled that the Constitution denied citizenship to Black Americans.

Children of foreign diplomats are not eligible for automatic citizenship at birth, nor are those born to occupying military forces in the United States. (Native Americans, initially excluded from the law, were later included by Congress.)

Trump and his allies, including South Dakota Gov. Kristi L. Noem (R), nominated to lead the Department of Homeland Security, have used military terminology when discussing immigration, referring to an “invasion” of undocumented migrants crossing the U.S. border with Mexico.

Illegal crossings in 2024 dropped to a low in the four years of the Biden administration, after reaching historic highs in 2023.

The birthright citizenship clause was tested after Congress, in 1882, banned Chinese workers from becoming naturalized citizens under the Chinese Exclusion Act. In 1898, the Supreme Court ruled that Wong Kim Ark, who was born in San Francisco and had been denied reentry to the United States after a trip abroad because of his Chinese descent, was a U.S. citizen.

“One of the reasons for constitutional citizenship is so we are not subject to the whims and winds of political favor as they change,” said Elizabeth Wydra, president of the Constitutional Accountability Center. “We want to make sure citizenship is recognized as stable, secure and an important aspect of dignity … and so you’re not worried about it being taken away by the next election.”