ACLU to Sue Trump Administration Over Birthright Citizenship
The legal battles have begun.
ONE OF THE LEADING CIVIL RIGHTS ORGANIZATIONS in the country is set to sue the Trump administration over the president’s pending executive order to end birthright citizenship, according to three senior immigration leaders.
The American Civil Liberties Union (ACLU) is preparing the lawsuit in anticipation of Trump moving to end the practice enshrined in the Constitution’s Fourteenth Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
“Yes, ACLU is suing,” Kica Matos, the head of the National Immigration Law Center, told The Bulwark. “This move is an example of the new administration’s lack of regard for the constitution. Attempting to repeal birthright citizenship via executive order is both absurd and unconstitutional.”
The battle lines over birthright citizenship began coming into focus weeks, if not months, ago, as Trump made clear his desire to end the practice, which he and other nativists blame for attracting undocumented immigrants across the border. But they came rapidly to a head with Trump’s inauguration on Monday, foreshadowing what seems likely to be a tense and litigious first few months of the second Trump administration.
On Monday, Trump—newly sworn-in, standing in the U.S. Capitol Rotunda, wearing a red-and-blue checked tie—delivered a sweeping list of executive orders he planned to sign, including the “national emergency” he was declaring at the U.S.-Mexico border, plans to halt all illegal entry and return “millions and millions of criminal aliens” back to where they came from, and the reinstatement of the ‘Remain in Mexico’ policy that Mexico has already said it will not agree to. Though ending birthright citizenship was not mentioned, aides have previewed that it will be part of the slate of new executive orders he would sign after his speech. Trump White House officials said the goal of the order was to not “recognize children of illegal aliens as citizens.”
Legal scholars have cast serious doubt on Trump’s ability to declare an established constitutional principle null and void. And, for that reason, lawsuits were anticipated. How soon the ACLU will move is not entirely clear. But the group’s expected legal challenge was confirmed by three senior immigration leaders aware of the planned suit who said the plan has been in the works from before Trump taking office. The ACLU did not immediately respond to a request for comment from The Bulwark.
Beyond a legal challenge on birthright citizenship, the Trump administration’s efforts to end birthright citizenship seemed designed to provoke a political fight as well. And Democrats have happily obliged.
“If you’re a textualist or an originalist, it’s clear the constitution guarantees birthright citizenship so this is blatantly illegal,” Rep. Ritchie Torres (D-N.Y.) told The Bulwark, warning that it was “highly doubtful” this “full frontal assault” on birthright citizenship would survive judicial scrutiny.
“Trump is the president, he’s not the king,” Torres added. “He does not have the authority to effectively suspend the Fourteenth Amendment of the U.S. Constitution. Not even Congress can pass a law to end it.”
Senator Ruben Gallego (D-Ariz.), who recently cosponsored the controversial Laken Riley Act, which would require detention of undocumented immigrants accused of nonviolent crimes such as shoplifting, said ending birthright citizenship was “un-American and unconstitutional—plain and simple.”
“We need to address our broken immigration system and secure the border,” he wrote on X. “But executive actions like this run contrary to the ideals of what makes our country great and I will do all I can to fight this anti-American executive order.”
Activists are bracing for a number of contentious legal battles over a variety of different Trump immigration orders. But they view the argument over birthright citizenship as fairly unambiguous, arguing that the law has been clear since the 1890s. They also believe that the politics will ultimately be on their side of the fight.
“No one is going to wake up tomorrow with a better job, safer street, or more secure border with this effort to get rid of birthright citizenship,” Todd Schulte, the president of FWD.us told The Bulwark. “We should be providing more opportunities for people to fully integrate and contribute to the country and this would do the opposite.”
The office of Denver Mayor Mike Johnston, who has made clear his intention to honor sanctuary laws for nonviolent immigrants, said he was concerned by the prospect of Trump targeting birthright citizenship. But they noted that such an act will face “pretty swift” legal action, while opposition to everything else will take time. The mayor is monitoring the possibility that local sheriffs will be deputized to do the work of immigration enforcement, which could affect Denver residents.
In addition to going after birthright citizenship, Trump’s transition has also forecasted “showcase” raids in blue cities, with reports that Chicago could be among the first, before incoming border czar Tom Homan said the administration would backtrack because the early notice could put agents in harm’s way. Immigration leaders told The Bulwark that Denver could be among the early cities targeted for raids, rumors that Johnston’s office said they too had heard.
The ACLU’s lawsuit won’t be the first directed at Trump since his inauguration at noon on Monday. Within minutes of the president taking office, a coalition of good government and progressive-leaning groups as well as public sector professional organizations, filed a suit alleging that Trump’s Department of Government Efficiency (DOGE) violates the Federal Advisory Committee Act by denying public access to its work.
The complaint does not seek to dismantle DOGE but to stop its work until it comes into compliance with federal law, noting that the entity was not set up by Congress but is still slated to dictate federal policy. “It is doing so under a shroud of secrecy with none of the transparency, oversight, or opportunity for public participation the law requires,” the suit alleges. “Despite its ongoing operations, Defendants have taken none of the required steps necessary to properly establish DOGE as a federal advisory committee consistent with FACA.”