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ACLU of NH: Trump’s order to end birthright citizenship is unconstitutional

U.S. Flag over Manchester, NH. Gaby Lozada photo.
Gaby Lozada
/
NHPR
U.S. Flag over Manchester, NH. Gaby Lozada photo.

A local nonprofit that represents immigrants is one of three organizations suing President Donald Trump and other government agencies. New Hampshire Indonesian Community Support is challenging an executive order signed late Monday that would end birthright citizenship for the children of some immigrants.

The ACLU’s New Hampshire, Massachusetts and Maine chapters are representing the plaintiffs, arguing Trump’s executive order is unconstitutional.

SangYeob Kim is a senior staff attorney at the ACLU of New Hampshire. He spoke with NHPR’s All Things Considered host Julia Furukawa about the lawsuit against Trump’s executive order to end birthright citizenship and why the ACLU is filing the case here in New Hampshire.

Transcript

So can we start with some basics? What is birthright citizenship, and what's the legal precedent for it in the U.S.?

Birthright citizenship is enshrined in the text of the 14th Amendment of the Constitution. So it says that all persons born in the United States and who are subject to the jurisdiction of the United States are U.S. citizens. That is regardless of who the baby's parents may be, regardless of the immigration status of the parents. It's literally clear that [it applies to] all persons. That's not just coming from the clear text of the Constitution, but it also comes from the Supreme Court's precedent in 1898 [United States v. Wong Kim Ark].

What's the ACLU's main legal argument in this lawsuit?

The president just cannot unilaterally change the definition of who becomes a U.S. citizen or not, because that's coming from the text of the Constitution. Also, Congress codified the exact same text through the statute. So if the president wants to amend the Constitution, the president may be able to do so by working with Congress. But what the president cannot do is just issue an executive order to change the definition of who becomes a citizen or not. That's what we are here to challenge. This executive order will go into effect after 30 days from yesterday, and we hope to block the enforcement of this executive order within that time frame.

Why did the ACLU decide to file the lawsuit here in New Hampshire? Why do you want to represent the New Hampshire community?

Because our community, the Indonesian community, is affected by [the] executive order. And this community is [a] vibrant and dynamic immigrant community contributing to society in New Hampshire. This order will affect, at a minimum, one couple who is a member of the community, who is seeking asylum and who is expecting a baby in just a few months. With this executive order, what this means is their baby would lose their U.S. citizenship identity, could possibly be stateless, and may face deportation. I also want to emphasize that in addition to this affected particular family, this executive order will impact thousands of immigrants, asylum seekers and highly qualified workers and students because this order is really, really broad.

As the lawsuit plays out, where does this leave folks like the New Hampshire couple that you just mentioned? What are their legal rights?

Their legal right is [that] they’re asylum seekers. So they came to the United States and then sought asylum by filing asylum applications. While they're waiting for their asylum application to be adjudicated again, they are expecting a baby and that baby’s U.S. citizenship is coming from the text of the U.S. Constitution.

I want to emphasize that again, the executive order is unquestionably unconstitutional and unlawful. The text is clear, as explained by the Supreme Court's own precedent and the president cannot just unilaterally change who becomes a U.S. citizen. If you are born in the United States, you are a U.S. citizen, and no one, not even the president, can change that.

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As the All Things Considered producer, my goal is to bring different voices on air, to provide new perspectives, amplify solutions, and break down complex issues so our listeners have the information they need to navigate daily life in New Hampshire. I also want to explore how communities and the state can work to—and have worked to—create solutions to the state’s housing crisis.
As the host of All Things Considered, I work to hold those in power accountable and elevate the voices of Granite Staters who are changemakers in their community, and make New Hampshire the unique state it is. What questions do you have about the people who call New Hampshire home?
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