Attorney General Nessel Challenges Unconstitutional Executive Order Attempting to Limit Birthright Citizenship

In Response to President Trump’s Issuance of Order Purporting to Limit Birthright Citizenship, Michigan and 16 Other States File Suit to Defend Basic Constitutional Rights for All Americans 

LANSING– Michigan Attorney General Dana Nessel today announced that she, along with the attorneys general of 16 other states, plus Washington D.C. and the City of San Francisco, are challenging President Donald Trump’s executive order attempting to limit birthright citizenship, which violates the constitutional rights to which all children born in the United States are entitled. 

“Birthright citizenship is a basic right granted to all Americans born on United States soil with historic roots and long-lasting implications for the states and their residents,” said Attorney General Nessel. “The Citizenship Clause has stood as constitutional law in this nation for more than 150 years and has twice been upheld by the U.S. Supreme Court. It is disappointing that in the first hours of this incoming administration, the first perceived enemy President Trump has struck against is the U.S. Constitution.”  

Following his inauguration, President Trump issued an executive order fulfilling his repeated effort to undermine the right to birthright citizenship, in violation of the Fourteenth Amendment of the United States Constitution and Section 1401 of the Immigration and Nationality Act. 

The Executive Order, as written, does not go into effect for 30 days, and does not rescind citizenship from those already born in the United States. The states joining this action are seeking immediate relief so that the order cannot take effect until the litigation is resolved. 

To stop the President’s unlawful action, which violates the Constitution and will harm hundreds of thousands of American children, Attorney General Nessel is filing suit in the U.S. District Court for the District of Massachusetts, seeking to invalidate the executive order and to enjoin any actions taken to implement it. The states request immediate relief to prevent the President’s Order from taking effect through both a Temporary Restraining Order and a Preliminary Injunction. 

As the Attorney General’s filing today explains, birthright citizenship dates back centuries—including to pre-Civil War America. Although the Supreme Court’s notorious decision in Dred Scott denied birthright citizenship to the descendants of slaves, the post-Civil War United States adopted the Fourteenth Amendment to protect citizenship for children born in the country. As the Attorney General’s filing also explains, the U.S. Supreme Court has twice upheld birthright citizenship, regardless of the immigration status of the baby’s parents.   

The individuals who are stripped of their United States citizenship lose their most basic rights and will be forced to live under the threat of deportation. These individuals will lose eligibility for a wide range of federal benefit programs. They will lose their ability to obtain a Social Security number and, as they age, to work lawfully. And they will lose their right to vote, serve on juries, and run for certain offices. Despite the Constitution’s guarantee of citizenship, thousands of children will—for the first time—lose their ability to fully and fairly be a part of American society as a citizen with all its benefits and privileges. 

“Today’s executive order is a clear violation of American law,” Nessel added. “The U.S. Constitution lays out the steps to alter an amendment unequivocally and clearly, and those steps do not include an executive order on the first or any day of a presidential term.” 

In addition to harming hundreds of thousands of residents, today’s filing explains that yesterday’s order significantly harms the states themselves too. Among other things, this executive order will cause the states to lose federal funding for programs that they administer, which turn at least in part on the immigration status of the residents being served, including: 

• Medicaid;
• Children’s Health Insurance Program; and
• foster care and adoption assistance programs.  

States will also be required—on extremely short notice and at considerable expenses, to imminently begin modifying their operation and administration of benefit programs to account for this change, which will require significant burdens for multiple agencies that operate programs for the benefit of the states’ residents. Today’s filing explains that they should not have to bear these dramatic costs while their case proceeds because the executive order is directly inconsistent with the Constitution, the Immigration and Nationality Act, and two U.S. Supreme Court decisions. 

Attorneys General for the states joining Nessel in today’s filing include California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Rhode Island, Vermont, Wisconsin, as well as Washington D.C. and the City of San Francisco.

Today’s suit is the first the Attorney General has filed in the new administration, in addition to multistate actions announced last week where the state attorneys general filed motion(s) to intervene, including an action to preserve access to the Affordable Care Act for DREAMers.