First Legal Challenges to Trump’s New Birthright Citizenship Executive Order

A few days ago, I wrote about Trump’s new birthright citizenship executive order and why the vast bulk of it is unconstitutional under the Supreme Court’s ruling in Trump v. Barbara, which struck down his earlier executive order denying birthright citizenship to children of undocumented immigrants and those on temporary visas. Yesterday and today, the first two legal challenges to the new order were initiated.

They were filed by the plaintiffs in two of the cases challenging the earlier orders. The plaintiffs in Barbara v. Trump are seeking modification of the injunction against the earlier executive order or a new injunction making clear that they cannot be deprived of birthright citizenship under the new order. In CASA, Inc. v. Trump, the plaintiffs are seeking a lifting of the stay of proceedings and a status conference addressing the new order. I expect they, too, will eventually seek an injunction against the latter order.

Both cases involve class actions certifying a class of children who would lose citizenship under Trump’s initial birthright citizenship order (those born to parents who are undocumented immigrants or non-citizens in the US on temporary visas). Class certifications are one of the tools available to get around the Supreme Court’s unwise ban on universal injunctions established by its unwise ruling in the CASA case last year.

I think almost all of the people affected by the new order do, in fact, fit into the classes certified in these two cases, in the sense that they are all children of non-citizens who either entered the US illegally or are here on temporary visas of some kind. The principal exceptions are children born in American Samoa (the only people covered by the part of Trump’s order applying to children “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute”), and perhaps children born to surrogate mothers who contracted with noncitizens outside the US (this is an element of the part of Trump’s order dealing with “birth tourism”). The vast majority of babies born in American Samoa are – I presume – born to permanent legal residents of that territory. Many of the surrogate mothers may actually be US citizens and the sperm and egg donors (if non-citizens) may not ever set foot in the United States at all (whether legally, or otherwise).

There may be various procedural obstacles to using these earlier cases to challenge the new executive order. Some of these procedural issues are outside my expertise, so I will have to leave them to others. But I do think the plaintiffs are right to point out 1) that the new order is clearly an outgrowth of the earlier one, and 2) much of it is clearly unconstitutional under Trump v. Barbara.

I expect, also, that state governments will be able to challenge the new order, just as some successfully did so in the lower courts, with the previous one. Lawsuits filed by states are another potential way to secure a universal (or at least very broad) injunction after Trump v. CASA, Inc.. Last year, after CASA, the US Court of Appeals for the Ninth Circuit granted one in a birthright citizenship challenging the original order.

Because the new order affects far fewer people than the original one, there may be more procedural obstacles to challenging it. But I expect eventually they will be overcome, and courts will hopefully invalidate it. There will also, of course, be wrangling about the proper scope of the resulting injunctions. I think universal injunctions are often well-justified. After Trump v. CASA, Inc., there are still various pathways to get them (or, rather, remedies very similar to them); but the Supreme Court has not so far given us definitive rulings on exactly how often those remedies are available.