More than a half-dozen legal groups — including ACLU chapters from New Hampshire and two other New England states — are once again asking a federal court to block President Donald Trump's latest attempt to change birthright citizenship in the U.S.
In June, the U.S. Supreme Court ruled that the 14th Amendment of the Constitution grants citizenship to nearly all babies born on U.S. soil, regardless of the citizenship status of their parents. The 6-3 ruling was a major political loss for Trump, who had carried through on his campaign pledge to seek to end birthright citizenship within days of retaking office.
Undeterred, Trump issued a new executive order last week seeking to expand the narrow exceptions to the citizenship guarantee. The Aug. 6 order directed agencies not to recognize the citizenship of individuals whose parents were "alien enemies," worked for a foreign government or were engaged in a "commercial transaction" or fraudulent activity to obtain citizenship.
But on Tuesday, the same seven groups that successfully challenged Trump's first executive order asked a New Hampshire federal court to block this latest order as well.
"It is extremely unusual that the president would try to reinvent or revise the 14th Amendment in any way," said Carol Garvan, legal director at ACLU of Maine. "And I think it is even more unusual that, just after getting a very clear ruling from the Supreme Court, that Trump would continue to resist the basic principles of birthright citizenship that are enshrined in the 14th Amendment."
The groups — the national ACLU, the ACLU of New Hampshire, the ACLU of Maine, the ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus and Democracy Defenders Fund — asked the New Hampshire District Court to either clarify its original preliminary injunction blocking the first order or issue a new injunction.
"If the President issues 100 orders seeking to create new exceptions to the sacred guarantee of the Citizenship Clause, all 100 will be equally illegal," the groups wrote in their petition to the court. "And nothing requires this Court to countenance the continued assault on this foundational constitutional principle or issue an endless string of EO-specific injunctions. The Court should make clear that Defendants may not take away class members' birthright under the auspices of these or any other executive actions."
The 14th Amendment of the U.S. Constitution was ratified in 1868 in response to the Supreme Court's controversial Dred Scott decision in 1857 denying citizenship to enslaved Black individuals. The amendment reads 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."
The Supreme Court then reaffirmed the constitutionality of birthright citizenship in 1898 in a case brought by a man born in California to parents who were from China.
Chief Justice John Roberts wrote the majority opinion in June overturning Trump's executive order seeking to end birthright citizenship, saying the authors of the 14th Amendment sought to "permanently enshrine" birthright citizenship.
But the 14th Amendment does contain several exceptions to that guarantee. The most notable is the exception for the children of foreign ambassadors. Trump's Aug. 6 executive order sought to expand on that exception, and others, in an attempt to "protect the meaning and value of American citizenship."
"After the Supreme Court's decision . . . the Administration continues to guard against efforts to obtain citizenship by malign foreign actors and other categories of aliens whom the Supreme Court recognized are ineligible for birthright citizenship under historically recognized exceptions," the White House said in a press release that day. "The Administration upholds the integrity of the Nation's immigration system by denying the entry of birth tourists who often work with malign syndicates to evade immigration laws and who plan to exploit their temporary admission to obtain American citizenship."
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