WASHINGTON (AP) — One of the first things an Argentine emigre did after her son was born in Florida last year was get him a U.S. passport.
She saw the passport as tangible evidence that he's an American. But now people like her are in a legal fight over President Donald Trump's that would to children born in the United States to people who are in the country illegally or temporarily.
“It’s funny because I actually booked him for his passport application appointment even before he was born,†the 28-year-old woman said, as her now 7-month-old son napped nearby. She spoke to The Associated Press on the condition of anonymity, insisted upon by her lawyers, out of fear of possible retribution by the Republican administration if she were publicly identified.
“I would say that I am definitely relieved that at least he is protected,†she said.
is hearing arguments on Wednesday over whether Trump's order, signed on Jan. 20, 2025, his first day back in office, comports with the post-Civil War and an 86-year-old federal law that has been to make citizens of everyone born in the country, with narrow exceptions for the children of foreign diplomats and invading armies. Every court to have considered the issue has found the order to be illegal and prevented it from taking effect.
The call to repeal birthright citizenship is part of the Trump administration's broader crackdown on immigrants that has included stepped-up deportations, drastic reductions in the number of refugees allowed into the U.S., suspension of asylum at the border and stripping temporary legal protections from people fleeing political and economic instability.
The case presents another test for a high court that has allowed some anti-immigration efforts to continue, even after lower courts had blocked them. The case before the court comes from New Hampshire, where U.S. District Judge Joseph N. LaPlante ruled that the order “likely violates†both the Constitution and federal law.
Constitution vs. executive order
The first sentence of the 14th Amendment, the Citizenship Clause, makes citizens of “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.†The case turns on the meaning of the final phrase about jurisdiction, which also was used in citizenship laws enacted in 1940 and 1952.
Trump's view, asserted in the order titled “Protecting the Meaning and Value of American Citizenship†and backed by some conservative legal scholars, is that people here illegally or temporarily are not “subject to the jurisdiction†of the United States and therefore their U.S.-born children are not entitled to citizenship.
The court should use the case to set straight "long-enduring misconceptions about the Constitution’s meaning,†Solicitor General D. John Sauer wrote.
In that regard, Sauer likened the case to the seminal 1954 decision in Brown v. Board of Education, which outlawed segregation in public schools, and the landmark 2008 Heller case, which declared that people have a constitutional right to keep guns for self-defense.
Last year, Justice Sonia Sotomayor called the Trump administration's effort to defend the order "an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.â€
Sotomayor was joined by the other two liberal justices in from a decision by the court’s six conservative justices that used an earlier round of the birthright citizenship dispute to limit the use of nationwide injunctions by federal judges.
Challenging Trump
The pregnant mothers and their advocates challenging the order, as well as lower-court judges who have blocked it, have said the Trump administration's arguments lack merit.
"We have the president of the United States trying to radically reinterpret the definition of American citizenship,†said Cecillia Wang, the American Civil Liberties Union legal director who will face off against Sauer on Wednesday.
More than one-quarter of a million babies born in the U.S. each year would be affected by the executive order, according to research by the Migration Policy Institute and Pennsylvania State University’s Population Research Institute.
While Trump has largely focused on illegal immigration in his rhetoric and actions, the birthright restrictions also would apply to people who are legally in the United States, including students and applicants for green cards, or permanent resident status.
‘The most beautiful thing’
The woman from Argentina said she came to the U.S. in 2016 on a visa to attend college and has since applied for a green card.
She described a moment of panic following the court’s June ruling, when it was at least possible that the restrictions could take effect, particularly in states such as Florida that had not challenged Trump's order. Lower-court rulings over the summer ensured the order remained on hold and set up the current Supreme Court case.
On top of the predictable worries of a first-time mother, she said, “I never thought that, you know, so close to the end of my pregnancy that I would have to be even thinking about ... the executive order and how it would have impacted my baby.â€
She has not reconsidered her decision to come to the United States or her desire to stay, she said, as her son stirred.
“And so nothing that happens, politically or otherwise, would have changed my views of the country, I mean, because it gave me the most beautiful thing I have today, which is my family,†she said.
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