President Trump’s executive order on birthright citizenship declares that babies born to many temporary residents of the United States — not just those in the country illegally — must be denied automatic citizenship, a dramatic rejection of rights that have been part of the Constitution for more than 150 years.
If the order is not blocked by the courts, it means that babies born to women living legally, but temporarily, in the United States — such as people studying on a student visa or workers hired by high-tech companies — will not automatically be recognized by the federal government as U.S. citizens if the father is also not a permanent resident.
Aides to Mr. Trump had told reporters on Monday morning that the order would apply to “children of illegal aliens born in the United States.” In fact, the language in the order Mr. Trump signed, titled “Protecting the Meaning and Value of American Citizenship,” goes much further.
“It’s a shocking attack on people in this country who are here lawfully, played by the rules and are benefiting the country,” said David Leopold, the chair of the immigration practice at the law firm UB Greensfelder. “We’re talking about people who are doing cutting-edge research in the United States, researchers, people who are here to help us.”
The order was part of a barrage of actions that Mr. Trump authorized on Monday to carry out his vision of a country with far less immigration. Despite claims he repeated on Monday that “I’m fine with legal immigration; I like it,” the president’s new orders would also severely curtail the options of those looking to enter the United States legally.
Many of the president’s closest advisers, including Stephen Miller, his deputy chief of staff and the architect of his immigration policy, have urged a tough line on birthright citizenship. During Mr. Trump’s first term, Mr. Miller and other aides pushed to make sure that immigrants could no longer establish what they call an “anchor” in the United States by having a baby who automatically becomes an American citizen.
In addition to targeting birthright citizenship, Mr. Trump on Monday barred asylum for immigrants seeking to cross the southern border, imposed an indefinite suspension of the legal refugee system, terminated several legal pathways for immigrants put in place by the Biden administration and declared the existence of an “invasion” from immigrants aimed at giving the federal government broad powers to stop all kinds of people from entering.
How It Could Work
The executive order regarding birthright citizenship says that right will be denied for babies born to parents who are not citizens or permanent residents with green cards, including women who are “visiting on a student, work or tourist visa” if the father is not a citizen or a legal permanent resident. In that case, the order says, “no department or agency of the United States government shall issue documents recognizing United States citizenship.”
There are serious questions about how Mr. Trump’s administration would impose such a dramatic change in policy.
Currently, the citizenship of babies born in the United States is documented in a two-step process.
First, when a baby is born on U.S. territory, the state or territorial government will issue a birth certificate confirming where and when the birth took place. The birth certificate does not include any information about the immigration status of the baby’s parents.
Second, when that baby (or the parents, on the child’s behalf) applies for a passport, the birth certificate showing that the baby was born on U.S. soil is enough to prove citizenship. No other documentation is required.
Mr. Trump’s executive order indicates that in 30 days, all federal agencies will be required to confirm the immigration status of the parents before issuing documents like a passport.
Left unclear, however, is how that would be put into practice.
One option would be for state agencies to check the immigration status of parents and include that information on birth certificates. Then, when passports are requested, the federal government would be able to determine which babies qualify for automatic citizenship.
It could take years, however, for states to put in place a system that checks the immigration status of all parents — assuming they are willing to do so. The federal government could establish guidelines for the information required, but it would most likely be up to the states to decide how and whether to gather that information from parents when they issue a birth certificate.
If the states do not overhaul the birth certificate process, the federal government could seek to enforce Mr. Trump’s order by requiring people applying for passports to present both a birth certificate and proof of their parents’ citizenship status when they were born.
That could become extremely cumbersome, legal experts said, particularly for people with complicated family dynamics or missing legal documents.
Several White House officials did not respond to questions seeking clarification about how the order might be carried out.
Legal scholars and immigration advocates said on Tuesday that they were stunned by the breadth of the order.
Advocates are hoping that judges will step in and put it on hold before it is set to take effect on Feb. 20. The American Civil Liberties Union filed a lawsuit in federal court in New Hampshire on Monday night challenging the order, just hours after the president signed it.
And on Tuesday, attorneys general from 22 states and two cities sued Mr. Trump to block the executive order. Rulings by either judge could temporarily suspend the president’s order, prompting what could be a monthslong legal battle that could end up before the Supreme Court.
“It’s very clear that they mean to double down on their nativistic anti-immigrant agenda, and that denying citizenship to children born in the U.S. has got to be a core part of their plan,” said Anthony Romero, the executive director of the A.C.L.U. “If we were to repeal birthright citizenship, it would create a legal vehicle for intergenerational stigma and discrimination that would undo the very core of this grand American experiment.”
Birthright citizenship in the United States was put in place after the Civil War to allow Black people to be citizens. The 14th Amendment says that “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.” Before the amendment was ratified in 1868, even free Black men and women could not become citizens.
Mr. Trump argues that his administration is within its rights to interpret what the writers of the amendment meant.
“The 14th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” his executive order said.
Many lawyers say that is flatly wrong. In their legal brief, the A.C.L.U.’s lawyers argued that the meaning of the 14th Amendment had been settled law for more than 125 years. They cited an 1898 case called United States v. Wong Kim Ark, in which they said the Supreme Court “emphatically rejected the last effort to undercut birthright citizenship.”
“The executive order is certainly unconstitutional,” said Cecillia Wang, the A.C.L.U.’s national legal director. “It’s fair to say that if the court were to uphold Trump’s birthright citizenship executive order, it would lose all legitimacy in the eyes of the people and in the history books.”
Beyond Birthright
The Trump administration has indicated that it plans to harness various tools to restrict those who seek legal entry into the country. Mr. Trump has long supported changes to what is called the “public charge” rule that would deny entry into the United States if a potential immigrant is likely to need to use public services like food or housing assistance.
The president could also try to restrict the right to travel for some groups of people. In another executive order he signed on Monday, Mr. Trump ordered officials to develop a list of countries that would be subject to a travel ban similar to the one he imposed during his first term in office.
