A judge appointed by President Donald Trump has ruled against his administration’s effort to limit birthright citizenship, dealing a blow to a key immigration policy.
A three-judge panel of the 9th U.S. Circuit Court of Appeals denied the Justice Department’s request to reinstate Trump’s executive order, potentially setting up an emergency appeal to the Supreme Court.
Why It Matters
Ending birthright citizenship for children of undocumented immigrants has become a key priority in the administration’s hardline immigration agenda, following Trump’s decision to issue an executive order challenging the long-standing precedent.
Trump signed the order after returning to the White House for his second term, however, it has prompted a flurry of legal pushback from groups like the ACLU.
What To Know
The Justice Department requested that the 9th Circuit issue an emergency stay on a lower court’s ruling that halted Trump’s order from taking effect.
The panel argued that the Justice Department had not made a “strong showing that they are likely to succeed on the merits of this appeal.”
Trump-appointed Judge Danielle Forrest elaborated on her reasoning in a concurring opinion, challenging the Justice Department’s definition of an emergency.
“It is routine for both executive and legislative policies to be challenged in court, particularly where a new policy is a significant shift from prior understanding and practice,” she wrote. “And just because a district court grants preliminary relief halting a policy advanced by one of the political branches does not in and of itself an emergency make. A controversy, yes. Even an important controversy, yes. An emergency, not necessarily.”
Polling by Quinnipiac conducted between December 12 and 16 showed most voters did not support Trump’s birthright citizenship policy.
Of 924 voters surveyed, 63 percent supported maintaining birthright citizenship, allowing any child born in the U.S. to receive an American passport. In contrast, 29 percent believed the policy should be revised to exclude automatic eligibility for children of noncitizens.
What Is Birthright Citizenship?
Birthright citizenship is the legal right for individuals born in a country to acquire citizenship regardless of their parents’ nationality or legal status.
The Constitution states: “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.”
What Is the 14th Amendment?
The constitutional guarantee of citizenship for anyone born on U.S. soil originates from the 14th Amendment and was upheld by the Supreme Court in the pivotal 1898 case United States v. Wong Kim Ark. In this decision, the Court determined that a man born in San Francisco to Chinese parents was entitled to U.S. citizenship, setting a lasting precedent that has shaped immigration law ever since.
Several lawmakers, including former South Carolina Governor Nikki Haley, have acquired U.S. citizenship in this manner, according to the American Immigration Council.
What People Are Saying
Fernando Pizarro, a former Washington correspondent and expert on immigration, told Newsweek: “Of all the Trump administration’s executive orders on immigration, the most controversial is the brazen attempt to end birthright citizenship, a right protected by the 14th amendment of the U.S. Constitution.”
Bennett Gershman, professor of law at Pace University, told Newsweek: “Trump’s Executive Order seeking to outlaw so called Birthright Citizenship is itself unlawful and will be easily struck down.
“Mr. Trump may not like the constitutional rule. But however much he would like to, he does not have the power to flout the Constitution. He would need to get Congress and the states to amend the constitution to implement his objective.”
Governor Gavin Newsom said in a statement after Trump signed the executive order: “This is unconstitutional.”
Border czar Tom Homan told CNN in December 2024: “I don’t think it’s enshrined in the Constitution at all—not the way I read it. But then again, I’m not a constitutional scholar. We’ll let the courts decide that on the birthright citizenship.”
Donald Trump said in a May 2023 campaign video: “On Day One of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal immigrants will not receive automatic U.S. citizenship.”
What Happens Next
While future presidents can overturn executive orders, amending the Constitution demands bipartisan support.
Ending birthright citizenship would likely require a constitutional amendment—a complex and challenging process—since an executive order alone would not suffice.
To amend the U.S. Constitution, a proposal must secure a two-thirds majority in both the House of Representatives and the Senate, followed by ratification from 38 state legislatures.
Instead, with this executive order, the Trump administration appears to be pursuing a lengthy legal battle, aiming for the Supreme Court to reinterpret the precedent established in United States v. Wong Kim Ark.
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