18 States Sue to Stop Trump’s Birthright Citizenship Order

The lawsuit to block the president’s executive order is the first salvo in what is likely to be a long-running legal fight over immigration policy.

Mr. Trump’s executive order asserts that the children of such noncitizens are not “subject to the jurisdiction” of the United States, and thus aren’t covered by the 14th Amendment’s longstanding constitutional guarantee.

The order flew in the face of more than 100 years of legal precedent, when the courts and the executive branch interpreted the 14th Amendment as guaranteeing citizenship to every baby born in the United States, regardless of their parents’ legal status. The courts recognized only a narrow exception for the children of accredited diplomats.

But there are signs the judiciary could be divided on the issue. Judge James C. Ho, whom Mr. Trump nominated to the U.S. Court of Appeals for the Fifth Circuit, has been more sympathetic to some of Mr. Trump’s arguments, likening unauthorized immigrants to an invading army. That comparison has also been made by lawyers for the State of Texas and another declaration by Mr. Trump that illegal crossings at the southern border amount to an “ongoing invasion.”

Still, that appeals court does not hear cases originating in Massachusetts, and other courts are unlikely to even consider the Trump administration’s arguments about constitutional interpretation without a new law from Congress, said Gerard Magliocca, a professor at the Indiana University Robert H. McKinney School of Law. He cited recent cases where the Supreme Court ruled that the executive branch can’t single-handedly address the biggest political controversies, known as “major questions.”

“If that’s true of student loans or Covid-19 rules or whatever, you’d think it would be true of citizenship as well,” he said. “The states are right and the courts are probably going to agree with them.”