by JPeters | May 5, 2025 10:07 am
This blog recently has been addressing immigration-related issues because developments in this area are likely to affect employers. Many employers have employees who may be directly affected by governmental actions related to immigration. The impacts on those people may, in turn, affect the stability of those employers’ workforces.
Birthright citizenship — a constitutional concept at the heart of American ideas of equality — is being aggressively challenged by the Trump Administration. One of President Trump’s first actions after his inauguration was signing an Executive Order (EO) entitled “Protecting the Meaning and Value of America[1],” which seeks to redefine birthright citizenship under the 14th Amendment.
The EO asserts that the 14th Amendment does not extend citizenship to all individuals born in the United States. It is part of the administration’s broad offensive against illegal immigration[2]. Specifically, it directs the government to no longer recognize automatic citizenship for the newborn children of undocumented immigrant parents, provided that neither parent is a United States citizen or legal permanent resident. The directive would also bar automatic citizenship for children born to noncitizen parents who are in the country on temporary work, student, or tourist visas.
President Trump and his attorneys argue that undocumented immigrants are in the country illegally and are therefore not “subject to the jurisdiction” of the United States government. It is an argument that challenges the first sentence of the 14th Amendment, which was added to the Constitution a few years after the end of the Civil War in 1868. The first section of the 14th Amendment states the following:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Trump Administration’s argument conflicts with a long and significant history of legal precedent.
Legal Precedent
One of the objectives behind the passage of the 14th Amendment was to correct the United States Supreme Court’s (USSC) Dred Scott v. Sandford[3], 60 U.S. 393 (1857) decision, and settle the definition of citizenship once and for all. In the Dred Scott case, the USSC had ruled that “African Americans cannot be citizens of the United States” and “had no rights which the white man was bound to respect.”
Following the passage of the 14th Amendment, two groups of people remained who could be born in the United States but would not be recognized as part of the United States citizenry: children of diplomats and Native Americans. Native Americans weren’t officially recognized as American citizens until the passage of the Indian Citizen Act of 1924.[4]
Over the years, numerous USSC cases have reaffirmed the 14th Amendment’s articulation of birthright citizenship. Numerous federal statutes also assume this understanding.
Among the most critical and often-cited USSC cases addressing the meaning of birthright citizenship is Wong Kim Ark v. the United States[5] 169 U.S. 649 (1898). Most scholars believe the ruling in this case clarified any remaining ambiguities concerning our understanding of the concept.
The case involved Wong Kim Ark, the son of Chinese parents, who was born in San Francisco in 1873. His parents legally resided in the United States for 20 years and then returned to China. At the age of 21, Wong Kim Ark went to China to visit his parents. When he returned to the United States, Wong was denied entry on the basis that he was not a citizen, notwithstanding having been born in the United States.
The denial by the governmental authorities of Wong Kim Ark’s entry back into the United States was predicated upon the passage of the Chinese Exclusion Acts[6] in 1882. This legislation was signed into law by President Chester A. Arthur[7], and it prohibited all immigration of Chinese laborers for 10 years — making exceptions for travelers and diplomats. The Act also denied Chinese residents already in the United States the ability to become citizens.
The USSC ruled in Wong Kim Ark’s case that the 14th Amendment guaranteed citizenship to all children born in the United States and said that “if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.”
Another USSC case, Plyler v. Doe[8] 457 U.S. 202 (1982), further explored the parameters of birthright citizenship. In that case, the court struck down a Texas statute that denied education for “illegal immigrants” and demanded a $1,000 annual tuition fee for any “illegal immigrant who wished to be educated in the Texas public schools.” In a divided decision, the USSC ruled that any child present in the United States was entitled to an education regardless of immigration status.
Rulings by the Courts
The Trump Administration is currently juggling eight lawsuits filed against this Executive Order alone. Two lawsuits involve coalitions of states, and six have been filed by civil rights groups.
A preliminary injunction[9] granted by the federal district court judge in New Hampshire, where Orr & Reno is located, is much like other rulings across the country. The plaintiffs in the New Hampshire case were New Hampshire Indonesian Community Support[10] and two other nonprofits. The American Civil Liberties Union argued the case. The plaintiffs said that there were members of their communities who were expecting children and that these children would be directly affected by the order if it moved forward.
Several states and two municipalities joined the New Hampshire lawsuit to stop enforcement of the order, including New Jersey, California, Massachusetts, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont, and Wisconsin. Arizona, Illinois, Oregon, and Washington filed separate suits in federal court, challenging President Trump’s order.
Arguing for the Plaintiffs, Cody Wofsy from the ACLU[11] drew many of her arguments from Wong Kim Ark v. the United States. Wofsy also said that the EO was a “radical vision of executive supremacy” that “overruled Congressional interpretations of the 14th Amendment.”
The defendant’s argument focused on a different USSC case, which was decided in 1884. In this case, Elk v. Wilkins[12], 112 U.S. 94 (1884), it was determined that John Elk was not a United States citizen and could not vote because he was born on the Ho-Chunk Nation[13] reservation. The defendant argued that the Elk case raised important questions about the sovereignty of the United States and that undocumented immigrants and temporary visitors “owed allegiance to other states” and their children should not be eligible for citizenship.
In making his decision to grant the injunction, Justice Joseph N. Laplante[14]:
“The court hereby finds that Plaintiffs have demonstrated a likelihood of success on the merits of their claims; that Plaintiffs are likely to suffer irreparable harm if the order is not granted; that the potential harm to the Plaintiffs if the order is not granted outweighs the potential harm to Defendants if the order is granted; and that the issuance of this order is in the public interest.
Pursuant to Federal Rule of Civil Procedure 65(a), this court orders that all Defendants are enjoined from enforcing Executive Order 14160, “Protecting the Meaning and Value of American Citizenship,” in any manner with respect to the plaintiffs, and with respect to any individual or entity in any matter or instance within the jurisdiction of this court, during the pendency of this litigation.
Justice Joseph N. Laplante, U.S. District Court for the District of New Hampshire”
In a statement released following the hearing, Wofsy said that “today’s ruling is the latest rebuke of President Trump’s wildly unconstitutional bid to end birthright citizenship. This attempt to deny babies their citizenship is as illegal as it is inhumane, and we will keep fighting until we stop this order for good.”
Other federal courts in Washington and Maryland have also granted preliminary injunctions against the Executive Order. Three appellate courts—the Ninth Circuit, the District of Columbia, and the First Circuit—have all upheld the lower court rulings to block President Trump’s EO limiting birthright citizenship. Although the decision of the New Hampshire federal court states that its preliminary injunction only applies to persons with that court’s jurisdiction (i.e., New Hampshire), several of the other preliminary injunctions apply nationwide.
Supreme Court’s Role
In early March, the Trump Administration asked the USSC to allow a few restrictions on birthright citizenship to “partly” take effect while the legal battles play themselves out. It’s not yet clear if the USSC will take up the case as an emergency matter — which is how the Trump Administration presented it. The Justices could also decide to weigh in on the central question, whether birthright citizenship is guaranteed in the Constitution.
In the Administration’s request for emergency relief — in three separate but nearly identical filings against the State of Washington,[15] the State of New Jersey[16], and CASA, Inc[17]. et al. — Sarah Harris, the Acting Solicitor General, said that the Trump Administration’s request was a “modest one,” which was to limit the pause on the Trump Administration’s deportation plans to “parties actually within the courts’ power.” Harris also said that “universal injunctions have reached epidemic proportions since the start of the current administration.” In other words, the Administration is asking the USSC to prohibit courts from issuing injunctions that would apply nationwide. It is thus debatable whether the request is modest – if granted it would affect not only the 14th Amendment litigation, but also the entire federal court system.
Impact on Employers
These are big changes in Immigration policy. Many employers are concerned how specific executive orders, recent court actions, and the Trump Administration’s immigration policies will impact them. If you have any concerns or questions about remaining compliant while everything seems so unsettled, don’t hesitate to contact Orr & Reno for assistance.
Steven L. Winer[18] and Emily A. White[19]
Source URL: https://orr-reno.com/the-trump-administrations-challenge-to-birthright-citizenship/
Copyright ©2025 Orr & Reno unless otherwise noted.