Illinois joined three Western states on Tuesday in a lawsuit challenging the constitutionality of President Donald Trump’s executive order ending birthright citizenship.
“The children born in the U.S. to immigrants are entitled to the rights and privileges that go along with U.S. citizenship,” Illinois Attorney General Kwame Raoul said in a news release.
A separate lawsuit against the order, aimed at the children of non-U.S. citizens, was filed in Massachusetts by 18 other states. Raoul’s office didn’t immediately respond to a question about why he signed onto the lawsuit filed in federal court in Seattle along with the states of Washington, Arizona and Oregon.
The lawsuit argues the president can’t decide who should be granted citizenship at birth or override the guarantees provided in the Constitution’s 14th Amendment, while also saying the president’s order was strictly a means to achieve a political goal.
“President Trump’s public statements make clear that he wishes to end birthright citizenship purely as a policy tactic to purportedly deter immigration to the United States,” the lawsuit argues.
The White House said the lawsuits against Trump’s order are “nothing more than an extension of the Left’s resistance,” according to The Associated Press.
“Radical Leftists can either choose to swim against the tide and reject the overwhelming will of the people, or they can get on board and work with President Trump,” White House spokesperson Harrison Fields told the AP.
The 14th Amendment of the U.S. Constitution states 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 White House plans to reinterpret the term “subject to the jurisdiction thereof” so that birthright citizenship would no longer be recognized by the federal government for children born in the U.S. to parents without legal status.
The lawsuit filed in Washington notes that there are no exceptions listed in that part of the Constitution based on citizenship or immigration status of parents. The phrase “subject to the jurisdiction thereof” refers to an “extremely limited number of individuals” including “the children of diplomats covered by diplomatic immunity or children born to enemy combatants,” the lawsuit said.
In addition to the Constitution, the lawsuit draws on the Immigration and Nationality Act and two Supreme Court decisions. It names Trump, the federal government and a number of other federal officials and departments as defendants.
In Illinois in 2022, more than 9,000 U.S. citizen babies were “born to mothers who lacked legal status” and more than 5,000 U.S. citizens were born to two parents without legal status, according to the lawsuit. Those numbers are a “conservative estimate” of the number of children statewide who might be affected by Trump’s order, the lawsuit said.
Martin Redish, a Northwestern Pritzker School of Law professor with expertise in federal courts and constitutional law, said the issue of birthright citizenship is “not a difficult constitutional question.”
“I readily can see there are parts of the Constitution that are ambiguous and cryptic,” Redish said Tuesday. “This isn’t one of them.”
Trump’s order to end birthright citizenship would harm children who remain undocumented, in part because it could risk future work authorization, access to banking and federal assistance, the lawsuit argues. It would also harm state programs, the lawsuit said, both by stripping federal funding tied to immigration status and making people rendered noncitizens more reliant on state benefits in lieu of federal ones.
The lawsuit including Illinois, which asks the court to temporarily prevent Trump’s order from taking effect while the case is being argued, was filed in a federal court that is under the 9th U.S. Circuit Court of Appeals in San Francisco.
The lawsuits from 22 states total against Trump’s order on birthright citizenship were in addition to separate suits filed by organizations including the American Civil Liberties Union.
A majority of American adults oppose ending birthright citizenship, polling from The New York Times conducted earlier this month found.
Trump’s order drew widespread criticism this week from Democratic leaders in Illinois.
Gov. JB Pritzker on Monday called the order “unconstitutional,” adding: “We will not follow an unconstitutional order.”
“We stand up for the rule of law in the state of Illinois. And we will protect people in the state of Illinois, according to the law and the Constitution,” he said.
Trump, for his part, acknowledged early on that the order would likely face legal challenges.
“We think we have very good (legal) grounds,” Trump previously said. “People have wanted to do this for decades.”
While the conservative-supermajority Supreme Court has sided with Trump in the recent past, Redish said he had trouble believing they’d support the president on this particular action.
“After the immunity decision, you might say all bets are off, but this is qualitatively different than that,” Redish said, referring to the high court decision last year granting broad immunity for presidential actions.
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