Why Trump’s birthright citizenship order will likely be struck down

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Ray Bogan Political Correspondent

By Ray Bogan (Political Correspondent), Snorre Wik (Photographer/Video Editor)

President Donald Trump signed an executive order Monday, Jan. 20, that would effectively end birthright citizenship for babies whose parents are not citizens or lawful permanent residents. The president’s directive is already being challenged in court by 22 Democratic state attorneys general who argue the president does not have the authority to unilaterally revise the 14th Amendment.

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“This is definitely going to make its way to the Supreme Court, hopefully sooner rather than later,” said Eric Sustad, an attorney for Global Immigration Partners. “This is two steps too far, and I do not think that they will uphold this executive order.”

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Why is the order unlikely to stand?

There are multiple reasons why Sustad and other legal experts believe the order will be struck down.

First, they contend the 14th Amendment is clear — “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.”

Second, Congress passed a law in 1952 to codify and reaffirm the 14th Amendment. Courts could interpret it as a statement that the legislative branch wants control over who gets citizenship.

Finally, multiple Supreme Court cases have ruled in favor of immigrants born in the United States. In United States v. Wong Kim Ark, the justices ruled that the 14th Amendment affirms the fundamental rule of citizenship by birth within the territory. In Plyer v. Doe, the justices ruled that the 14th Amendment applies to everyone, regardless of their legal status.

Is the order legal?

“As far as the legality, that’s highly dubious,” Sustad told Straight Arrow News. “I’m speaking as an immigration attorney, and so obviously, I’m coming at this as an advocate for immigrants. But at the same time, I’m not seeing much legal justification for this.”

Trump’s order officially prohibits federal agencies from issuing citizenship documents, like a passport or certificate, to a person whose mother was in the country illegally and whose father is not a citizen or lawful permanent resident. It also applies to those whose mothers were in the country legally but on a temporary basis. Trump is also barring federal agencies from accepting citizenship papers from state and local governments for babies born under the same circumstances.

The White House believes it is on sound legal footing. It contends the 14th Amendment’s birthright citizenship clause excludes those born in the United States but not “subject to the jurisdiction thereof.”

If Trump’s order is ultimately upheld, babies whose parents are not citizens or lawful permanent residents could be deported.

“The default is if you don’t have permission to be in the US and you’re not a US citizen, then you’re unauthorized in the United States,” Sustad said. “They don’t have permission to be present in the United States, and so they are removable.”

Sustad said this executive order could put many families in uncharted territory. He added that anyone who may be impacted should stay off the radar of immigration authorities.

Tags: 14th Amendment, Constitution, Deportation, Donald Trump, Executive Order, Immigration, Immigration and Customs Enforcement, Mexico, U.S.-Mexico Border

[Ray Bogan]

President Donald Trump signed an executive order Monday that would effectively end birthright citizenship for babies whose parents are not citizens or lawful permanent residents.

The president’s directive is already being challenged in court by 22 Democratic State Attorneys General who argue the president does not have the authority to unilaterally revise the 14th amendment.

Eric Sustad: “This is definitely going to make its way to the Supreme Court, hopefully sooner rather than later. Because I’m confident that even with the unfriendly composition of the court right now, this is a step, this is two steps too far. And I do not think that they will uphold this executive order.”

There are multiple reasons why Sustad and other legal experts believe the order will be struck down.

First they contend the 14th amendment is clear – “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.”

Second, Congress passed a law in 1952 to codify and reaffirm the 14th amendment, which courts could interpret as a statement that the legislative branch wants control over who gets citizenship.

Finally, there are multiple Supreme Court cases that ruled in favor of immigrants born in the United States.

In US v. Wong Kim Ark, the justices ruled the 14th amendment affirms the fundamental rule of citizenship by birth within the territory. In Plyer v. Doe, the justices ruled the 14th amendment applies to everyone, regardless of their legal status.

Eric Sustad, Global Immigration Partners: “As far as the legality, that’s highly dubious. I’m speaking as an immigration attorney. And so obviously, I’m coming at this as an advocate for immigrants. But at the same time, the this I’m not seeing much legal justification for this.”

If Trump’s order is ultimately upheld, babies whose parents are not citizens nor lawful permanent residents could be deported.

Eric Sustad, Global Immigration Partners: “So the default is if you don’t have permission to be in the US and you’re not a US citizen, then you’re unauthorized in the United States. so I think children who are born without that recognition, well, under operation of law as it is right now, they are US citizens being born here, but assuming that they’re not. Probably be most analogous to visa overstay. They don’t have permission to be present in the United States, and so they are removable.”

Sustad said this executive order could put many families in uncharted territory and added anyone who may be impacted should stay off the radar of immigration authorities.