Flurry of Legal Challenges Immediately Mounted to Trump Birthright Citizenship Order

WASHINGTON — A day after President Donald Trump signed a slew of immigration-related executive orders, immigration researchers said during a Tuesday briefing they are scrutinizing the legal implications of the White House’s move to end birthright citizenship as well as sweeping directives barring asylum and more.

The ACLU and immigrant rights groups sued the Trump administration in U.S. District Court for the District of New Hampshire shortly after Trump signed the birthright citizenship order. On Tuesday, 18 state attorneys general also sued over the order, in U.S. District Court for the District of Massachusetts. Those states include New Jersey, Massachusetts, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont and Wisconsin.

Additionally, state attorneys general from Arizona, Illinois, Oregon and Washington sued the Trump administration in U.S. District Court for the Western District of Washington at Seattle over birthright citizenship, in which people born in the United States are considered citizens — excluding the children of foreign diplomats — even if their parents are not.

Other executive orders Trump signed Monday night declare a national emergency at the southern border, end asylum and reinstate several harsh immigration policies from his first term.

“Executive orders do not change the fact that U.S. law provides for access to asylum … which I think will feature prominently in what I expect to be rapid litigation of these measures,” said Kathleen Bush-Joseph, an attorney at the Migration Policy Institute, a think tank that studies migration and facilitated the press briefing.

Trump order permits enforcement in churches, schools

Additionally, the Trump administration is already issuing new directives for immigration enforcement.

Acting Department of Homeland Security Secretary Benjamine Huffman issued two directives Monday. One rescinds Biden-era guidelines for Immigration and Customs Enforcement and Customs and Border Protection that limited enforcement in or near so-called “sensitive” areas, such as places of worship, schools, health care facilities, relief centers, and social services centers, among other areas.

“The Trump Administration will not tie the hands of our brave law enforcement, and instead trusts them to use common sense,” DHS said in a statement.

The other directive curtails the use of humanitarian parole and “returns the program to a case-by-case basis.” The Biden administration used that authority for Ukraine, Afghanistan, Cuba, Haiti, Nicaragua and Venezuela.

Within hours of Trump taking office, a popular app that migrants used to make appointments with asylum officers, known as CBP One, was shut down, canceling all future appointments. The ACLU has already sued over that as well.

Birthright citizenship

But it was the order on birthright citizenship that immediately attracted multiple legal challenges.

The executive order states the federal government will not recognize or issue citizenship documentation to any child born after Feb. 19 to parents who are in the country without proper authorization, or if the parent is in the United States on a temporary visa and the other parent is a noncitizen or green card holder.

Birthright citizenship is a right enshrined in the 14th Amendment of the U.S. Constitution and was upheld in a 1898 U.S. Supreme Court case.

There are roughly 5.5 million U.S. children born with at least one parent who is an undocumented immigrant and 1.8 million U.S.-born children with two undocumented parents.

“I think if it wasn’t obvious already, it is just the operational sort of challenge of even making this interpretation live,” said Muzaffar Chishti, a senior fellow and director of the Migration Policy Institute office at New York University School of Law, at the briefing.

He argued that the executive order would apply to any child born in the U.S. after it’s enacted and would require hospitals to check the documentation of everyone.

“You cannot just limit to people you think may be in the country illegally,” Chishti said.

Mass deportations

Trump, who campaigned on carrying out mass deportations of people in the country without proper authorization, made little mention of the promise in his inauguration speech and other remarks Monday.

But his executive orders signal that initiative, said Doris Meissner, the director of U.S. immigration policy at the Migration Policy Institute.

“A range of the executive orders that have to do with expedited removal, broadening detention capacity, information-sharing with local law enforcement, all do speak to the issue of the mass deportations initiative,” Meissner said.

But she added that some of the executive orders signed, and a bill that is likely to make its way to Trump’s desk to be signed into law could undercut those efforts by using vast resources and impeding on deportation logistics.

For example, one executive order ends the policy known as “catch and release.” That policy allows migrants who are detained to live in U.S. communities while they await having their asylum cases heard by an immigration judge.

The bill Congress is moving toward final passage, S. 5, would require mandatory detention for immigrants accused of or charged with property crime, injury or death of a U.S. citizen and the assault of a law enforcement official.

“Both require significant detention capacity in order to enforce them,” Meissner said. “So we see impediments, we see constraints, but we’re also likely to see continuing and ongoing threats that generate fear and uncertainty that is already at a heightened level and that will heighten even further.”

Last updated 4:45 p.m., Jan. 21, 2025

by Ariana Figueroa, Virginia Mercury

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