On Monday, President Donald J. Trump issued a sweeping executive order that would end birthright citizenship for children of undocumented immigrants and some lawful temporary residents.
The backlash from legal scholars was swift, who say the text violates the longstanding interpretation of the 14th Amendment in United States courts. Now, 22 states are challenging the executive order through 5 different lawsuits.
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7 Eyewitness News spoke with Loyola Law School professor Jessica Levinson about what you need to know as the legal battle over the executive order unfolds.
What does the birthright citizenship executive order say?
Trump’s order directs federal agencies to stop issuing citizenship documents to U.S.-born children of undocumented mothers. It also applies to mothers in the country on temporary visas, if the father is not a U.S. citizen or permanent resident.
Does the executive order violate the 14th Amendment?
The 14th Amendment was put into the U.S. Constitution after the Civil War to ensure former slaves and the children of former slaves were considered U.S. citizens.
The text of the Amendment states that all people born or naturalized in the U.S., “and subject to the jurisdiction thereof,” are American citizens.
Under a new legal interpretation, Trump’s lawyers argues that undocumented immigrants and pregnant people on temporary visas are not subject to the jurisdiction of the U.S.
Levinson says that interpretation is contrary to more than 100 years of legal precedent, including Supreme Court rulings dating back to the late 1800s. She says the overwhelming majority of legal scholars and judges disagree with Trump’s legal theory.
“If you were born here, you enjoy full citizenship,” Levinson says. “Period. Full stop.”
When does the order go into effect?
The order is supposed to take effect 30 days after it was issued, which is Feb. 19. However, on Thursday, a judge temporarily blocked the order for 14 days, which he can do again once the injunction expires.
In his ruling, Federal District Court Judge John C. Coughenour called the order “blatanly unconstitutional.” Trump vowed to appeal the decision.
Levinson says the injunction could be extended indefinitely, or at least while the cases are going through the court system.
Does the order apply to people who are already living in the U.S. or just to newborns?
The text of the order states that it applies to newborns. It is not retroactive for people who are already U.S. citizens.
How many people would this affect?
According to a lawsuit filed by 18 states, there are about 150,000 children born each year to two parents who are non-citizens and lack legal status.
California Attorney General Rob Bonta estimates the order would affect more than 20,000 newborns each year. That’s 5% of the babies born in the state annually.
Can Trump change the U.S. Constitution?
Trump cannot unilaterally change the Constitution. An amendment on birthright citizenship is highlight unlikely, because it requires a supermajority vote in both chambers of Congress and ratification by three-quarters of the states.
Am I protected in a sanctuary state?
If the executive order goes into effect, living in a sanctuary city, county or state would not have an impact.
“That would be the federal law of the land, regardless of whether or not a state is a sanctuary state,” Levinson says.
How long will the lawsuits go on for?
Levinson predicts the lawsuits will take months or possibly years to go through the court system.
“I think what we can expect,” she says, “is that judges will pause the implementation of the executive order, there will be litigation and that litigation will take months.”
Will the U.S. Supreme Court take up the case? How will they rule?
The lawsuits have to work their way up through court system before they can be taken up by the U.S. Supreme Court.
The current Supreme Court is not easy to predict, Levinson says, but her expectation is that the justices would rule against the executive order if they take up the issue. The court could also decided not to rule on the matter and defer to lower courts’ rulings.
“Is there a possibility however remote than other judges, some justices of the supreme court, could have a different view of the 14th Amendment?” Levinson said. “It’s possible. I don’t think it’s probable.”
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