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22 States, Civil Rights Groups Sue to Block Trump’s Birthright Order

Education and immigration advocates say Trump’s move to deny citizenship to some U.S.-born infants will do lasting harm to children and schools.

Children at an elementary school in California recite the Pledge of Allegiance, September 2010. (Getty Images)

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Updated, Jan. 23

A federal judge in Washington state today temporarily blocked President Donald J. Trump’s three-day-old executive order to end birthright citizenship. U.S. District Judge John C. Coughenour, a Reagan appointee, called the order “blatantly unconstitutional.” He agreed with the four state plaintiffs that it would cause irreparable harm to those denied their right to citizenship, subjected to the risk of deportation and family separation and deprived of federally funded medical care and public benefits that “prevent child poverty and promote child health,” also impacting their education. A separate federal lawsuit is pending in Massachusetts.

Twenty-two states — plus San Francisco and Washington, D.C. — and several civil rights groups are suing to block President Donald J. Trump’s move to undo birthright citizenship through executive order, a constitutional challenge education leaders say could transform public schools. 

Trump, who rode a tidal wave of xenophobia to a second term, argues that birthright citizenship does not extend to any child whose mother is unlawfully present in the United States or lawfully present on a temporary basis — such as foreign students — and whose father is neither a citizen nor a lawful permanent resident. 

The move garnered immediate backlash: Birthright citizenship is guaranteed by the 14th Amendment, ratified in 1868. It states 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.” 

“If you lose the protections of birthright citizenship and Plyler v. Doe is overturned or somehow ignored, then I think a lot of families would withdraw their children from school out of fear of deportation,” said immigration advocate and policy expert Timothy Boals, referring to the 1982 Supreme Court case which forbids schools from denying enrollment based on a child’s or their parents’ immigration status. 

Conservative forces aligned with the Trump administration have been strategizing an end to Plyler for years. That potential threat is now being amplified with the affront on birthright citizenship and Tuesday’s announcement that Immigration and Customs Enforcement officers are now free to make arrests and carry out actions in schools, churches and other once-protected areas. The president has already pledged mass deportations and a return to family detention.

“What that means is more children are denied an education and that’s not good for our society if they end up staying,” said Boals, “and it’s certainly not good for the students wherever they end up going.”

Speaking specifically about the ICE enforcement change, Laura Gardner, who founded Immigrant Connections, a consulting group that works with educators, said the policy will create “intense fear” and could negatively impact student attendance and family engagement. It will also be difficult for teachers, whom she said can’t do their job when children aren’t in school. 

“As educators, we always remind students and families that schools are a safe space and now we can’t really guarantee that,” she told The 74. “Ultimately, all this is going to do is hurt innocent children.”

About 4.4 million U.S.-born children under 18 lived with an unauthorized immigrant parent in 2022, according to the Pew Research Center. About 250,000 babies were born to unauthorized immigrant parents in the United States in 2016, the latest year for which information is available, according to Pew’s analysis of government data. This represents a 36% decrease from a peak of about 390,000 in 2007.

The president also seeks to prohibit government agencies from issuing documents recognizing an infant’s citizenship if born under the circumstances he outlined — or from accepting documents issued by state, local or other authorities acknowledging their citizenship. 

The controversial order could go into effect Feb. 19, leaving children born on U.S. soil to non-citizen parents, from that date on, without any legal status. “They will all be deportable and many will be stateless,” according to one of two federal lawsuits filed by the states

It said Trump has no right to rewrite or nullify a constitutional amendment, “Nor is he empowered by any other source of law to limit who receives United States citizenship at birth.”

Anthony D. Romero, executive director of the American Civil Liberties Union, one of the groups fighting the move, called it a reckless and ruthless repudiation of American values.

“Birthright citizenship is part of what makes the United States the strong and dynamic nation that it is,” he said. “This order seeks to repeat one of the gravest errors in American history, by creating a permanent subclass of people born in the U.S. who are denied full rights as Americans.”

Romero’s remarks harken back to one of the Supreme Court’s most reviled rulings: Dred Scott v. Sandford. In that 1857 case, the court ruled that enslaved people, including Dred Scott, were not citizens of the United States and, as a result, could not expect any protection from the federal government or courts, according to the National Archives

The ruling, which pushed the nation toward civil war, was essentially undone by the 13th and 14th amendments. 

New York Attorney General Letitia James lambasted Trump for trying to reverse what has been a hallmark of the nation for more than 150 years.

“This executive order is nothing but an attempt to sow division and fear, but we are prepared to fight back with the full force of the law to uphold the integrity of our Constitution,” she said. “As Attorney General, I will always protect the legal rights of immigrants and their families and communities.”

If Trump’s order is implemented, the U.S. would join other nations that do not allow birthright citizenship — or greatly restrict such protections — including the United Kingdom and Australia

As of 2022, Pew Research reported that unauthorized immigrants represented 3.3% of the total U.S. population and 23% of the foreign-born population: Immigrants as a whole comprised 14.3% of the nation’s population that year, below the record high of 14.8% reached in 1890.

At an inaugural prayer service Tuesday, an Episcopal bishop made a direct plea to Trump to reconsider his views on immigrants and their kids. 

“… they may not be citizens or have the proper documentation, but the vast majority of immigrants are not criminals. They pay taxes and are good neighbors,” the Rev. Mariann Edgar Budde said. “… I ask you to have mercy, Mr. President, on those in our communities whose children fear their parents will be taken away …”

The next day Trump demanded an apology and described Edgar Budde as a “so-called Bishop” and a “Radical Left hard line Trump hater” who was not compelling or smart.

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