WASHINGTON — President Donald Trump’s plan to eliminate the constitutionally protected right of birthright citizenship is just one of several controversial executive actions that could face resistance from judges and could be struck down by the Supreme Court.
Legal experts say other policies that may be legally vulnerable include a plan to round up and deport certain immigrants by invoking an 18th-century law called the Alien Enemy Act. Efforts to reallocate congressional funds for border wall construction and deny congressional appropriations for environmental policy are also likely to be challenged.
Civil rights groups and Democratic attorneys general are likely to sue over multiple Trump policies. In fact, within minutes of Trump being sworn in, a lawsuit was filed challenging Trump's proposed Department of Government Efficiency.
But not all lawsuits are created equal, and many will fail.
That would be especially true if Trump simply reverses positions taken by President Joe Biden and federal agencies to follow the letter of the law.
Trump administration officials intend to invoke new or previously untested theories, which are where they are most likely to fail, even with a 6-3 conservative majority on the Supreme Court and three Trump appointees. people.
"I expect the Trump administration will face strong pushback in the courts when it takes unlawful actions and is properly challenged in court," said Jonathan Adler, a professor at Case Western Reserve University School of Law.
Legal scholars on the left and right have long argued that the Fourteenth Amendment requires birthright citizenship.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” the amendment states.
The amendment was enacted after the Civil War to ensure that former slaves and their children were recognized as citizens.
Years of consensus about its meaning haven't stopped some anti-immigration advocates from proposing an alternative explanation.
Trump adopted these arguments in his executive order, focusing on language in the amendment that states that “birthright citizenship” is granted to those “subject to the jurisdiction of the United States.”
The argument goes that the language means children born to parents who have not entered the country legally could be stripped of their citizenship.
However, most legal experts say the language refers only to people who are not subject to U.S. law, usually foreign diplomats.
The Supreme Court has never directly ruled on the issue, but in 1898, in United States v. Wong Kim Ark, the court ruled that a man born in San Francisco to Chinese parents was a U.S. citizen.
"We will file this lawsuit immediately, and I have every confidence that we will prevail," Connecticut Attorney General William Tong said Monday. Last month, he told NBC News that he would pursue legal action if Trump proceeds with his plan. Be the “first to sue.”
The American Civil Liberties Union also filed a lawsuit Monday night.
Thomas Wolfe, an attorney at the Brennan Center for Justice at New York University School of Law, said the Trump administration is asking the Supreme Court to "ignore the plain text of the 14th Amendment" and overturn established precedent. More than a century.
Birthright citizenship is not the only immigration-related issue that has ended up in the courts, with Trump announcing a series of executive orders on the issue. One of them is the "Remain in Mexico" policy he implemented during his first term, which prevented people seeking asylum at the southern border from entering the country while their applications were processed.
During Trump’s first term, the Supreme Court never ruled on the “Remain in Mexico” plan. It did issue a decision in 2022 allowing Biden to unwind the agreement.
There is a similar legal rationale for Trump's executive order, which paves the way for his use of the Enemy Alien Act, which is part of the Alien Act of 1798 and the Sedition Act.
The order instructs officials to "be prepared to act" in case Trump decides to invoke the law, which enables the president to detain or deport citizens of other countries if the United States is at war. It played a role in the internment of Japanese Americans during World War II.
But as legal experts point out, it can only be used in times of war, which could limit its use by Trump, who said on Monday he wanted to use it to detain drug cartel members.
Ilya Somin, a professor at George Mason University's Antonin Scalia School of Law, wrote on Monday that the Foreign Enemy Act "cannot be used in our current situation" because the country is not at war. He said that while some Republicans believe there is an "invasion" at the southern border, that is not enough to trigger the law.
Somin added in an email that the Enemy Alien Act and the birthright citizenship program "are the two (Trump policies) most likely to fail."
Federal funding issues may also lead to litigation, but the outcome is uncertain.
During his first term, Trump sought to redirect military funds appropriated by Congress to help build a wall along the southern border. That's because Congress didn't fund the wall, leading to a legal battle over the president's authority to decide how to spend the money.
Under the Appropriations Clause of the Constitution, Congress has, as is often said, the "power of the purse."
Trump will revive and amplify this fight in two ways.
First, he appears ready to continue fighting to complete construction of the border wall, which could lead to some of the same legal disputes as before.
The Supreme Court never decided during Trump's first term whether he could reallocate funds for the wall. It had sued over the issue but dismissed the case as moot after Biden took office in 2021.
The court did allow some of the funds to be used early in the proceedings.
Another Trump proposal would be to refuse to spend money allocated by Congress for specific purposes, possibly as it relates to environmental programs approved as part of the Inflation Reduction Act and the Infrastructure Investment and Jobs Act. That will spark another legal battle — this time over the Impoundment Control Act, a 1974 law that requires executive branch spending appropriations.