One of President Donald Trump's first acts in office was to issue an executive order to repeal birthright citizenship — something he promised to do but failed to deliver on during his first term. The move, which is almost certainly unconstitutional, will affect the country's more than 11 million undocumented immigrants as well as Americans holding non-immigrant visas, including more than 580,000 H1-B holders. The executive order is expected to take effect 30 days after it is announced, although two lawsuits filed in federal court could slow or halt its implementation.

Trump floated the idea of ​​abolishing birthright citizenship in 2018. At the time, his critics pointed out that the move would require a constitutional amendment because birthright citizenship is guaranteed by the Fourteenth Amendment. “No president can change the Constitution with the stroke of a pen,” Beth Walling, then-executive director of the American Immigration Council, said at the time. To address this issue, Trump's executive order seeks to reinterpret the Fourteenth Amendment rather than amend or repeal it entirely.

As the order states, the Fourteenth Amendment confers citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Courts have historically held that "subject to its jurisdiction" means anyone in the country regardless of immigration status, but Trump's order asserts that the amendment:

does not automatically apply to a person born in the United States: (1) when the person's mother is illegally present in the United States and the father is not a U.S. citizen or lawful permanent resident at the time of the person's birth, or (2) when the person is born, the person is The mother is legally but temporarily present in the United States (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or on a visitor's student, work, or tourist visa), and the father is not a U.S. citizen or lawful permanent resident at the time of the person's birth.

In short, under Trump’s order, most children of undocumented immigrants will not become U.S. citizens, nor will the children of Americans holding student, work or tourist visas. This is not just a reinterpretation of the Fourteenth Amendment, but an attempt to abolish the jus soli principle that underpins American citizenship.

The United States has enjoyed birthright citizenship since its founding. Anyone born in the country or its overseas territories is a citizen, regardless of the nationality or immigration status of their parents. This is different from citizenship by descent, where citizenship can only be obtained by persons whose parents are nationals of a certain country. There have been a few exceptions to birthplace citizenship in U.S. history—most notably, the exclusion of enslaved African Americans and their children, as the Supreme Court described in its landmark 1857 ruling that way Dred Scott v. Sanford case. After the Civil War, Congress enacted the Fourteenth Amendment, granting citizenship to anyone born on U.S. soil.

Two lawsuits have been filed challenging the executive order. On Monday night, hours after the order was announced, the American Civil Liberties Union (ACLU) and a host of other groups filed a lawsuit in New Hampshire federal court. Attorneys general from 18 states, as well as San Francisco and Washington, D.C., filed separate lawsuits in federal district court in Massachusetts on Tuesday.

"Neither the Constitution nor any federal statute confer any power upon the President," the ACLU's lawsuit states. The ACLU argued that allowing the executive order to remain in place "would 'facilitate' the creation and continuation of a subclass" of children Born in the United States, but lacking basic legal recognition and facing stigma for its novelty and uncertainty. status. ” Furthermore, the lawsuit states that the order “will raise ongoing questions about the citizenship status of immigrant children, particularly children of color.” "

The ACLU lawsuit and one filed by 18 states both ask courts to block the executive order before it takes effect.