Attorneys general from 18 states sued President Trump on Tuesday to block an executive order that refuses to recognize the U.S.-born children of unauthorized immigrants as citizens, the opening salvo in what promises to be a long legal battle over the Trump administration’s immigration policies.
The complaint, filed in Federal District Court in Massachusetts was joined by the cities of San Francisco and Washington, D.C.
The states view Mr. Trump’s attempt to limit birthright citizenship as “extraordinary and extreme,” said New Jersey Attorney General Matthew J. Platkin, who led the legal effort along with the attorneys general from California and Massachusetts. “Presidents are powerful, but he is not a king. He cannot rewrite the Constitution with a stroke of the pen.”
On Monday, in the opening hours of his second term as president, Mr. Trump signed an order declaring that future children born to undocumented immigrants would no longer be treated as citizens. The order would extend even to the children of some mothers in the country legally but temporarily, such as foreign students or tourists.
Mr. Trump’s executive order asserts that the children of such noncitizens are not “subject to the jurisdiction” of the United States, and thus aren’t covered by the 14th Amendment’s longstanding constitutional guarantee.
The order flew in the face of more than 100 years of legal precedent, when the courts and the executive branch interpreted the 14th Amendment as guaranteeing citizenship to every baby born in the United States, regardless of their parents’ legal status. The courts recognized only a narrow exception for the children of accredited diplomats.
But there are signs the judiciary could be divided on the issue. Judge James C. Ho, who Mr. Trump nominated to the U.S. Court of Appeals for the Fifth Circuit, has been more sympathetic to some of Mr. Trump’s arguments, likening unauthorized immigrants to an invading army. That comparison has also been made by lawyers for the state of Texas and another declaration by Mr. Trump that illegal crossings at the southern border amount to an “ongoing invasion.”
Still, that appeals court does not hear cases originating in Massachusetts, and other courts are unlikely to even consider the Trump administration’s arguments about constitutional interpretation without a new law from Congress, said Gerard Magliocca, a professor at the Indiana University Robert H. McKinney School of Law. He cited recent cases where the Supreme Court ruled that the executive branch can’t single-handedly address the biggest political controversies, known as “major questions.”
“If that’s true of student loans or Covid-19 rules or whatever, you’d think it would be true of citizenship as well,” he said. “The states are right and the courts are probably going to agree with them.”
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