On Friday, a federal court in Boston will hear a plea from 18 state attorneys general to halt President Donald Trump’s executive order, which ends birthright citizenship for children of illegal immigrants.
The hearing comes after a federal judge in Seattle stopped the order Thursday, citing the administration’s handling of the Constitution, claiming Trump was attempting to modify it through an executive order. The Seattle verdict in a lawsuit filed by four states and an immigrant rights group came after a Maryland federal court imposed a national hold on the order in a different but related case on Wednesday.
In the Boston lawsuit, the state attorneys general, as well as the cities of San Francisco and Washington, have asked Judge Leo Sorokin to grant a preliminary injunction.
They contend that the principle of birthright citizenship is “enshrined in the Constitution” and that Trump lacks the authority to issue the order, which they describe as a “flagrantly unlawful attempt to strip hundreds of thousands of American-born children of their citizenship based on their parentage.”
They also claim that Trump’s order will deprive states of cash needed to “provide essential services” such as foster care, health care for low-income children, and “early interventions for infants, toddlers, and students with disabilities.”
The 14th Amendment to the Constitution, passed in 1868 during the Civil War, and the Dred Scott Supreme Court ruling, which ruled that Scott, an enslaved man, was not a citizen despite living in a state where slavery was illegal, are at the heart of the litigation.
The Trump administration claims that children of noncitizens are not “subject to the jurisdiction” of the United States and hence do not qualify for citizenship.
Attorneys representing the states have claimed that it does, and this has been acknowledged since the amendment’s passage, most notably in an 1898 U.S. Supreme Court case. That decision, United States v. Wong Kim Ark, held that the only children who did not automatically receive U.S. citizenship upon birth on U.S. soil were children of diplomats with allegiance to another government; enemies present in the U.S. during hostile occupation; those born on foreign ships; and those born to members of sovereign Native American tribes.
The United States is one of around 30 nations that practice birthright citizenship, often known as jus soli or “right of the soil”. The majority are in the Americas, with Canada and Mexico among them.
