Employment & Labor Insider

The “birthright citizenship” issue

The Fourteenth Amendment to the U.S. Constitution states, “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.” A federal statute originally enacted by Congress in 1952 contains similar language.

However, under President Trump’s Executive Order, children born in the United States would not automatically become American citizens if, at the time of birth, (1) the mother was unlawfully present in the United States and the father was not a U.S. citizen or lawful permanent resident, or (2) the mother was in the United States legally but temporarily (for example, on a tourist visa) and the father was not a U.S. citizen or lawful permanent resident.

The Trump Administration contends that these children are not “subject to the jurisdiction” of the United States. Neither the Fourteenth Amendment nor the statute specifically addresses the status of children born in the United States to individuals who are in the United States unlawfully or on a lawful-but-temporary basis.

Not surprisingly, the Executive Order has been the target of numerous legal challenges essentially contending that the Order violates the Fourteenth Amendment. So far, the Administration has not been successful, but that might change if  the birthright citizenship issue gets to the U.S. Supreme Court.

Recent losses for the Administration

On July 23, in Washington v. Trump, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a nationwide injunction preventing the President’s Executive Order from taking effect. This is the first time a federal appellate court has rendered a decision on the merits.

More recently, on July 25, a federal district judge in Massachusetts declined to modify a nationwide injunction blocking the Executive Order that he had issued in February.

Both of these rulings, as well as another ruling from a federal judge in New Hampshire, were issued after the Supreme Court’s June 27 decision in Trump v. CASA, Inc. CASA was also a birthright citizenship case, but the Court did not rule on the merits of the Executive Order. Instead the Court focused whether federal district courts had the authority to issue “nationwide,” or “universal,” injunctions and, if so, under what circumstances.

The Supreme Court directed the courts to issue injunctions only to the extent necessary to provide “complete relief” to the plaintiffs. The Court did not define what constitutes “complete relief,” which has left the door open to potential alternative avenues to obtain nationwide injunctions. This includes class actions and challenges to federal regulatory action under the Administrative Procedure Act.

Washington v. Trump

In Washington v. Trump, the Ninth Circuit panel declined to address the claims of the individual plaintiffs in the case, who were pregnant when the lawsuit was filed but as of the decision had already given birth to children who were not subject to the Executive Order and are therefore U.S. citizens. However, with respect to the plaintiff states (Washington, Arizona, Illinois, and Oregon) the majority affirmed a district court ruling that the Executive Order was unconstitutional and that “the district court did not abuse its discretion in issuing a universal injunction in order to give the states complete relief.” The states alleged that they would lose federal funding and reimbursements if an injunction were not granted. And according to the panel majority, if a narrower injunction were to be issued, the other states would suffer similar effects.

Regarding the merits of the birthright citizenship issue, the panel also affirmed the lower court’s determination that the Executive Order conflicted with the “plain language” and “ordinary meaning” of the Fourteenth Amendment.

The panel rejected the government’s argument about what “subject to the jurisdiction thereof” meant, reasoning that the plain text, ordinary meaning, and prior court decisions weighed in favor of interpreting the language to mean “subject to United States authority and laws.”

Thus, “[t]he district court correctly concluded that the executive order's proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional.”

The Ninth Circuit panel consisted of Judge Ronald Gould and Judge Michael Hawkins, both Clinton appointees, and Judge Patrick Bumatay, a Trump appointee. Judge Bumatay agreed with the majority that there was no need to address the claims of the individual plaintiffs, but dissented on the ground that, in his view, the plaintiff states – Washington, Arizona, Illinois, and Oregon – did not have standing to sue.

New Jersey v. Trump

Two days after the Ninth Circuit decision, a federal judge in Massachusetts declined to modify a nationwide injunction blocking the Executive Order that he had issued before the Supreme Court’s CASA decision. In New Jersey v. Trump, Judge Leo Sorokin, an Obama appointee, found that a narrower injunction would not offer complete relief and would not “adequately protect the plaintiffs from the injuries they have shown they are likely to suffer if the unlawful policy announced in the Executive Order takes effect.”

Barbara v. Trump

In the oldest post-CASA case, a federal judge in New Hampshire (Joseph LaPlante, an appointee of President George W. Bush) provisionally certified a class of plaintiffs who were non-citizens of the United States and issued a preliminary injunction blocking the Executive Order.

What’s next

All of these rulings are likely to result in further litigation, and to eventually reach the Supreme Court.

So far, the rulings have not deterred government agencies such as the U.S. Department of State and the Social Security Administration, among others, from issuing their own plans to implement the Executive Order.