Democratic-led states sue over Trump’s birthright citizenship order

US president Donald Trump has launched his sweeping immigration crackdown, which includes an order reinterpreting birthright citizenship and redefining what it means to be American.

“As commander-in-chief, I have no higher responsibility than to defend our country from threats and invasions, and that is exactly what I am going to do,” Mr Trump said in his inaugural address.

Democratic-lead states and civil rights groups have filed a slew of lawsuits in response, challenging the president’s bid to roll back a principle that has been recognised in the US for more than 150 years.

Here are the details of controversial plan and if it is likely to become a reality.

What is birthright citizenship?

Anyone born in the US is considered a citizen at birth.

This is because of the Citizenship Clause of the 14th Amendment that was added to the Constitution in 1868. The amendment states:

“All persons born or naturalised 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 also defines citizens and includes similar language.

(There are some exceptions. For example, those born in the US to a foreign diplomatic officer with diplomatic immunity are not US citizens because they are not subject to US jurisdiction.)

There were an estimated 11 million immigrants in the US illegally in January 2022, according to a US Department of Homeland Security estimate, a figure that some analysts now place at 13 million to 14 million.

Their US-born children are considered by the government to have US citizenship.

Mr Trump has complained about foreign women visiting the United States for the purpose of giving birth and conferring US citizenship on their offspring.

What does Trump’s executive order say?

Mr Trump’s order declared that individuals born in the United States are not entitled to automatic citizenship if the mother was in the country unlawfully and the father was not a citizen or lawful permanent resident.

It also declared citizenship would be denied to those whose mother was in the United States lawfully but temporarily, such as those on student or tourist visas, and whose father was not a citizen or lawful permanent resident.

“The privilege of United States citizenship is a priceless and profound gift,” the executive order states.

“But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”

Executive orders are used by presidents to pursue agendas they can’t get through Congress.

But both Congress and the courts can potentially block executive orders.

How do Australia’s citizenship laws compare?

Section 12 of the Australian Citizenship Act 2007 states that a person born in Australia is an Australian citizen if:

• a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born, or;
• the person is ordinarily resident in Australia for the first 10 years of the person’s life.

What has the Supreme Court said?

The Supreme Court has not addressed whether the Citizenship Clause applies to US-born children of people who are in the United States illegally.

The main birthright citizenship case is from 1898, when the Supreme Court ruled that the son of lawful immigrants from China was a US citizen by virtue of his birth in 1873 in San Francisco.

The man, Wong Kim Ark, had been denied re-entry to the United States after a visit to China at a time when immigration from China was severely restricted.

The Supreme Court also ruled in 1884 in a dispute over voter registration that US-born John Elk was not a citizen because he was born as a member of a Native American tribe and therefore not subject to US jurisdiction.

Congress extended US citizenship to Native Americans in 1924.

What has the reaction been?

Twenty-two Democratic-led states along with the District of Columbia and city of San Francisco filed a pair of lawsuits in federal courts in Boston and Seattle asserting Mr Trump’s executive order had violated the US Constitution.

Two similar cases were filed by the American Civil Liberties Union (ACLU), immigrant organisations and an expectant mother in the hours after Mr Trump signed the executive order, kicking off the first major court fight of his administration.

“Denying citizenship to US-born children is not only unconstitutional — it’s also a reckless and ruthless repudiation of American values,” Anthony Romero, the ACLU’s executive director, said in a statement.

If allowed to stand, Mr Trump’s order would for the first time deny more than 150,000 children born annually in the United States the right to citizenship, said the office of Massachusetts Attorney-General Andrea Joy Campbell.

The states say losing out on citizenship will prevent those individuals from having access to federal programs such as Medicaid health insurance and working lawfully and voting when they become older.

“Today’s immediate lawsuit sends a clear message to the Trump administration that we will stand up for our residents and their basic constitutional rights,” New Jersey Attorney-General Matthew Platkin said in a statement.

Episcopal Bishop Mariann Edgar Budde, who delivered the sermon at the Washington Cathedral to Mr Trump on his first full day in the top job, also made an impassioned case for immigrants.

“The people who pick our crops and clean our office buildings, who labour in poultry farms and meat-packing plants, who wash the dishes after we eat in restaurants and work the night shifts in hospitals, they … may not be citizens or have the proper documentation, but the vast majority of immigrants are not criminals,” she said, as Mr Trump listened to the sermon.

“I ask you to have mercy, Mr President, on those in our communities whose children fear that their parents will be taken away, and that you help those who are fleeing war zones and persecution in their own lands to find compassion and welcome here.

“Our God teaches us that we are to be merciful to the stranger.”

How likely is it Trump’s executive order will come into effect?

US immigration lawyer Andy Semotiuk told ABC News Channel that Mr Trump’s executive order was “very, very likely to be struck down” by the courts.

“This particular provision of the 14th Amendment has been around for 150 years,” Mr Semotiuk said.

“There are 22 states, as I understand it, that have made challenges to the proclamation, so that’s going to go through the courts and I think there’s very little doubt that the courts will strike it down.”

The Republicans completed a clean sweep during the November election, winning the presidency, the Senate and the House of Representatives.

The Supreme Court also has a 6-3 conservative majority following appointments Mr Trump made during his first term.

But Mr Semotiuk says “you have to have some confidence in the checks and balances of the United States’ system of government”.

The courts are separated from the president and, ostensibly, the judges in those courts act independently of what the executive branch wants and tries to follow the law in these areas.

What are these new arrest laws I’m hearing about?

Mr Trump’s administration has announced it will roll back Biden-era guidance that limited federal immigration arrests near sensitive locations, including schools, hospitals and churches.

“Criminals will no longer be able to hide in America’s schools and churches to avoid arrest,” the Department of Homeland Security said in a statement.

Mr Trump’s ‘border tsar’, Tom Homan, has said the US Immigration and Customs Enforcement (ICE) will focus on tracking down serious criminals but that anyone without legal status could be subject to arrest.

How does Trump’s deportation track record stack up against Biden and Obama?

Throughout his election campaign, Mr Trump regularly promised to begin the “largest deportation operation in the history of our country”.

However, ICE figures show former president Joe Biden oversaw a dramatic increase in deportations in his final year in office.

ICE deported more than 271,000 unauthorised immigrants in the 2024 fiscal year, the highest tally recorded by the agency since 2014.

The previous peak in 2014 was overseen by fellow Democratic president Barack Obama, where his administration carried out 316,000 deportations.

The most deportations carried out while Mr Trump was in office was during the 2019 fiscal year, where ICE deported 267,000 people.

ABC/wires

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