Two dozen Democratic-led states and cities are challenging President Donald Trump’s bid to end birthright citizenship in court, a major constitutional challenge to one of the White House’s signature policies.
The lawsuits allege that a Trump executive order signed Monday violates the 14th Amendment of the Constitution, which gives a constitutional right of citizenship to all children born in the United States.
“Despite a President’s broad powers to set immigration policy, however, the Citizenship Stripping Order falls far outside the legal bounds of the President’s authority,” states a lawsuit from 18 states, Washington, DC, and San Francisco.
The case could end up becoming the first major Supreme Court showdown for Trump’s second-term agenda. The 18 states filed in a Massachusetts federal court, which means any appeal of a ruling from that court will come up through the First US Circuit Court of Appeals, where all the judges are Democratic appointees.
The Supreme Court has upheld birthright citizenship in the past and there is also a federal law passed by Congress, predating the 14th Amendment’s 1868 ratification, establishing that children born on US soil are entitled to citizenship.
“The president’s entitled to put forth a policy agenda that he sees fit,” New Jersey Democratic Attorney General Matthew Platkin, who is co-leading the new lawsuit,.
“When it comes to birthright citizenship – something that’s been part of the fabric of this nation for centuries, that’s been in the Constitution for 157 years since the Civil War, that’s been upheld by the Supreme Court twice – the president cannot, with a stroke of a pen, rewrite the Constitution and upend the rule of law,” he added.
Also Tuesday, the attorneys general of Washington, Arizona, Oregon and Illinois brought their own lawsuit on the west coast. It was filed at a federal court in Seattle that is within the 9th US Circuit Court of Appeals, a traditionally left-leaning court that has become less liberal in recent years.
Both suits are also seeking a preliminary order blocking the policy before the Trump administration can take steps to implement it.
Similar lawsuits targeting Trump’s order were brought by the American Civil Liberties Union and immigration rights groups on Monday.
CNN has reached out to the White House and Justice Department for comment on the legal challenges to the executive order.
Unprecedented executive order
Though Trump signed the order hours after he was sworn in, his aides anticipated that the policy – which he has floated since his first term in office – would be heavily litigated and sought to create a deliberative process by which the end of the birthright citizenship would be implemented.
The order prohibits federal agencies from issuing documents that affirm US citizenship or recognize documents claiming to recognize US citizenship, according to a fact sheet obtained by CNN.
It applies to children born starting 30 days after the issuance of the order. The children covered under it are those born on US soil to parents who are either unlawfully present in the US, or in situations where the mother is temporarily in the US, like on a visa, and the father is a noncitizen.
The order hinges on the phrase “subject to the jurisdiction thereof” in the 14th Amendment. Some immigration hardliners have argued that children of undocumented immigrants are not “subject to the jurisdiction” of the US and shouldn’t be considered citizens under the Constitution.
Legal experts previously told CNN they were skeptical such an argument would fly in court, arguing that such the relevant language was aimed at children of foreign diplomats who were subject to US laws, and at situations where a foreign nation has invaded and is occupying part of the country.
Both the ACLU and the attorneys general have described bringing their challenges as an easy call, legally, believing that the merits weigh heavily on their side. It may be one of multiple Trump immigration policies that get challenged in court.
“If it is not stopped in court, he really, as I said, is striking at the heart of American communities, both with his attack on birthright citizenship, as well as many of these other immigration enforcement activities,” Cecillia Wang, national legal director of the ACLU, told CNN’s Kate Bolduan.
ACLU and states were prepared
With Trump long forecasting for years his desire to end birthright citizenship, his opponents have had months to prepare their legal challenges.
Among plaintiffs in the ACLU lawsuit are expectant parents “who may be deemed to be covered by the Order,” according to the complaint.
The states, in their own lawsuit, say that at least 150,000 children born to two parents without legal status would be denied citizenship by the order.
They argue that their systems would be burdened by being required to take on a greater financial role to provide services since noncitizens can’t access federally funded health care, education and other services.
“Under the Order, such children born after February 19, 2025 – who would have been unquestionably deemed citizens had they been born two days ago – will lack any legal status in the eyes of the federal government,” the states argued in their lawsuit. “They will all be deportable, and many will be stateless.”
The impacted children, the states argue, “will lose the ability to access myriad federal services that are available to their fellow Americans. And despite the Constitution’s guarantee of their citizenship, they will lose their rights to participate in the economic and civic life of their own country – to work, vote, serve on juries, and run for certain offices.”
The challenge brought by the smaller group of states in Seattle raised similar arguments about how those states could be burdened by the loss of federal funding if the order is allowed to take effect.
