The constitutional clash over Trump's birthright citizenship order

SALT LAKE CITY — In his first day in office, President Donald Trump signed an executive order that would bar some children born in the United States from claiming citizenship here.

Referred to as "birthright citizenship," Trump's order was immediately challenged in court. A federal judge put a temporary stay on the order, but the final decision on how to interpret the 14th Amendment, which most legal scholars say grants birthright citizenship, will likely be decided by the U.S. Supreme Court.

Thoughts on the issue show stark divisions along partisan lines, with a new Deseret News national poll conducted by HarrisX showing a majority of Republicans support Trump's move, while a strong majority of Democrats are strongly opposed. On this issue, independents are more likely to side with Democrats than Republicans.

The issue is affecting state politics too, with several state attorneys general, including Utah Attorney General Derek Brown, supporting Trump in his defense of the executive order.

Trump's executive order on birthright citizenship signed on Day 1

Trump signed the order, "Protecting the Meaning and Value of America," on Jan. 20, the same day he was sworn in for his second term.

At the time, someone in the room commented that his attempt to redefine the U.S. Constitution's 14th Amendment would likely be challenged.

"It could be," Trump responded, calling America's long-standing approach to birthright citizenship "absolutely ridiculous. But you know, we'll see. We think that we have very good grounds."

A legal response to the order is precisely what occurred next.

After Trump signed the executive order, which would deny citizenship to children born to migrants temporarily or illegally in the United States, 18 Democratic attorneys general, and AGs from Washington, D.C., and San Francisco, filed a lawsuit in Massachusetts opposing it. The federal judge agreed with them, and temporarily blocked Trump's order.

Three other similar lawsuits were filed that also challenged the order.

How did their Republican counterparts respond to Trump's order?

Eighteen GOP attorneys general, including Brown, signed a friend of the court brief in response to a separate New Jersey lawsuit filed in opposition to the executive order.

In their briefing, the Republican AGs argued the plaintiffs had an "incorrect interpretation of the Citizenship Clause of the United States" that creates "a strong incentive for illegal immigration and birth tourism in the hope of providing children with citizenship. That increased illegal immigration has serious costs on the States."

Why did Brown support it? In his initial statement about his decision, Brown said he supported Trump's order because birthright citizenship enables people to "exploit American tax dollars and is inconsistent with sensible immigration policy, the views of almost half of all Americans, and the text of the Constitution."

Since then, Brown has declined interview requests on the issue. He did respond to a question from the Deseret News on the judge's restraining order.

"I think the job of the attorney general is to ask some of the difficult questions and to really highlight some of the legal issues that people may not be thinking about," he said. "I'm always going to be willing to do that, even if it makes the people uncomfortable, because I think that's what I was elected to do."

Is Trump's order constitutional?

Many legal experts argue that the executive order will never become law, citing the 14th Amendment as evidence. The Amendment says, "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."

But those in favor of Trump's order argue interpretation of the amendment is up for debate.

Rob Axson, chairman of the Utah Republican Party, said in an interview with the Deseret News that he believes migrants in the country illegally are not under the jurisdiction of U.S. law — the language used in the 14th Amendment of the U.S. Constitution — so why should it apply to their child?

"This is an issue that predated Trump," Axson said. "This is an issue that has been in question and certainly created disconnect and animosity in this country for a long time, and so I think it's appropriate for it to be addressed. And I think it's appropriate, from a legal perspective, that it should go through the courts and go to the Supreme Court."

In their lawsuit, the Democratic attorneys general defended their interpretation of the citizenship clause based on a Supreme Court decision from 127 years ago, United States v. Wong Kim Ark.

Wong Kim Ark was born in San Francisco in 1873 to Chinese parents who were not eligible to become U.S. citizens because of immigration law. After a trip to China, Wong was denied reentry to the U.S. because, as a child of noncitizen parents, he was not a U.S. citizen.

The Supreme Court decided in a 6-2 decision that birth on U.S. soil automatically conferred citizenship, regardless of the parent's citizenship status.

To many legal experts, the wording of the 14th Amendment is clear, but the Trump administration says the phrase "subject to the jurisdiction thereof" is up for interpretation. That language is the focal point of the president's executive order.

During a CBS News "Face the Nation" interview, Vice President JD Vance said that if a person is in the U.S. illegally, then they are not subject to the laws and rights held by legal citizens, and "if you're not subject to the jurisdiction of the United States and don't plan to be, why would we make those people's children American citizens."

Democrats: Birthright citizenship is a settled matter

New Jersey Attorney General Matt Platkin told The Wall Street Journal that if Trump's executive order eventually passes, "it means that the Constitution doesn't matter."

Utah House Minority Leader Rep. Angela Romero agrees, arguing that Trump's order is "fundamentally unconstitutional" and would "undermine the protections" ensured by the 14th Amendment.

"It's important to remember that immigrants are the backbone of our nation and play an essential role in enriching our culture and strengthening our economy. If this executive order was implemented, families and communities across the country could be severely disrupted, with children facing uncertain futures regarding their citizenship status, access to education, health care and employment opportunities," Romero told the Deseret News in an emailed statement.

In a recent Deseret News/Hinckley Institute of Politics poll conducted by HarrisX, 805 Utahns were asked whether they agree with Trump's birthright citizenship executive order.

A majority of the Utah respondents agreed more with Romero than Axson or Brown. When asked whether they support the Trump executive order on birthright citizenship, 42% said they strongly or somewhat supported the order, compared to 49% who said they didn't.

A majority of Utah Republicans (57%) did support the order, but only 14% of Democrats and 31% of independents said the same.

The poll was conducted from Feb. 18-25 and has a margin of error of +/- 3.5 percentage points.

"Every child born in the U.S. has equal rights and opportunities, regardless of family background," Romero said. "The president's executive order weakens constitutional protections for everyone and threatens the checks and balances that sustain our government system."

Since the executive order was signed, four federal judges have blocked it, saying it violates the citizenship clause in the 14th Amendment.

Will the Supreme Court weigh in?

Last week, Trump's Justice Department suffered a loss when an appeals court denied its request for an "emergency" lift on the block, preventing Trump's executive order from taking effect.

"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," Judge Danielle Forrest, a Trump appointee, wrote in the filing. "A controversy, yes. Even an important controversy, yes. An emergency, not necessarily."

The order was set to take effect on Feb. 19, but that didn't happen. With arguments now scheduled for June, the case is on track to likely reach the Supreme Court, where Axson says interpretation is needed.

"Is there an appetite in this country to adjust the United States Constitution through our appropriate process to address this?" Either way, Axson said, a Supreme Court decision — should they weigh in — is a "fail-safe and a backstop" outcome that is "absolutely appropriate."

"Birthright citizenship is probably the single greatest encouragement and motivator of folks coming across the border," he said, arguing that it is likely the most "enticing encouragement to illegal immigration than any type of welfare benefit or economic opportunity or anything else, because of the privileges and opportunities that come with living in this country."

"If we have a mechanism where, 'Hey, come to this country, and you get all of these benefits,' and it's easier to do it illegally than to do it legally, and there's the porous border security, of course, we're going to continue to have people coming here the wrong way," Axson said. "If we want to end human suffering that is as egregious as what we see on the border, we have to start behaving and acting differently."

Is the order causing fear?

Gina Crezee, executive director of Immigrant Legal Services, a Utah-based nonprofit that helps 300 to 500 people through the immigration process every year, said that the fear immigrants had when Donald Trump won the White House last November was enhanced when he signed the executive order on birthright citizenship on his first day as president.

So, she said, she tells her clients to have a plan and to go about their business and stay prepared.

"You can talk to any family who has undocumented members, and they will tell you, 'We have a plan,'" she said. "Everybody's just really scared and really nervous. So what I'm telling people is to take a deep breath and be calm. Yes, things are vastly changing, more than normal, but I think Trump is talking a really big game."

Related topics