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IMMIGRATION FEBRUARY 07, 2025 | The Indian Eye 32
Trump’s Executive Order
Restricting Birthright Citizenship
Is So Unconstitutional that Even
the Supreme Court May Reject It
BY CYRUS D. MEHTA AND ent in the United States and of said person’s birth. ized in the United States, born within the territory of
the father was not a United The executive order and subject to the jurisdic- the United States, of all oth-
KAITLYN BOX*
States citizen or lawful per- further directs agencies not tion thereof, are citizens of er persons, of whatever race
manent resident at the time to “issue documents recog- the United States and of the or color, domiciles here, is
n January 20, 2025, of said person’s birth, nizing United States citizen- States wherein they reside.” within the allegiance and the
Inauguration Day,
protection, and consequently
Lost in the heated po-
2. or when that person’s ship, or accept documents
ODonald Trump mother’s presence in the issued by State, local, or oth- litical rhetoric surrounding subject to the jurisdiction of
signed an executive order en- United States at the time of er governments or authori- Trump’s executive order is the United States.
titled “Protecting the Mean- said person’s birth was lawful ties purporting to recognize that it is next to impossible Although in Elk v. Wil-
ing and Value of American but temporary (such as, but United States citizenship” to amend the hallowed Four- liams, 112 U.S. 94 (1984),
Citizenship”, which inter- not limited to, visiting the to individuals falling within teenth Amendment, which those born within Native
prets the language “subject United States under the aus- these categories. Further, was enacted to ensure birth- American tribes were not
to the jurisdiction thereof” in pices of the Visa Waiver Pro- the executive order specifies right citizenship to African born “subject to the jurisdic-
the Fourteenth Amendment gram or visiting on a student, that it applies “only to per- Americans after the Civil tion” of this country because
to mean that U.S. citizenship work, or tourist visa) and sons who are born within the War, and following the infa- they owed allegiance to their
does not extend to individu- the father was not a United United States after 30 days mous decision in Dred Scott tribal nations rather than the
als born in the United States: States citizen or lawful per- from the date of this order”, v. Sanford that held that United States, this preclu-
1. when that person’s
mother was unlawfully pres- manent resident at the time and does not speak to wheth- African Americans could sion was eventually eliminat-
er the U.S. citizenship of not claim American citizen- ed by the Indian Citizenship
a child who has already ship. In United States. V Act of 1024. Even the Board
been born to two non- Wong Kim Ark, 169 U.S. 649 of Immigration Appeals in
U.S. citizen or LPR par- (1898), the Supreme Court Matter of Cantu, Interim
ents will continue to be extended the Fourteenth Decision #2748, broadly
recognized. Amendment to an individual held that one who was born
The American Civ- who was born to parents of on a territory in 1935, the
il Liberties Union has Chinese descent and during a Horcon Tract, where the
already sued the Trump time when Chinese nationals United States had impliedly
administration over this were subjected to the Chi- relinquished control, but had
executive order. The nese exclusion laws: not yet ceded it to Mexico
complaint argues that The Fourteenth Amend- until 1972, was born “subject
the Fourteenth Amend- ment affirms the ancient and to the jurisdiction” of the
ment was indented to fundamental rule of citizen- United States and thus a US
confer U.S. citizenship ship by birth within the ter- citizen.
on all persons born in ritory, in the allegiance and Other lawsuits are sure
the United States, re- under the protection of the to follow, and the executive
gardless of the citizen- country, including all chil- order may be blocked by
ship status of their par- dren here born of resident federal courts. As the recent
ents, and asserts that the aliens, with the exceptions decision on DACA in the
executive order violates or qualifications (as old as Fifth Circuit, which enjoined
the Fourteenth Amend- the rule itself) of children of the program only in Texas,
m of ment, 8 U.S.C. § 1401, foreign sovereigns or their demonstrates, a federal court
CYRUS D. MEHTA & PARTNERS PLLC which mirrors the Four- ministers, or born on foreign decision could result in the
public ships, or of enemies different definitions of who is
Amendment’s
teenth
language, and the Ad- within and during a hostile a U.S. citizen depending on
ministrative Procedure occupation of part of our the jurisdiction. Thus, even
Act. territory, and with the sin- if plaintiffs prevail in the le-
The granting of au- gle additional exception of gal action in federal court in
tomatic citizenship to a children of members of the New Hampshire, the court
child born in the US is Indian tribes owning direct may not issue a nationwide
rooted in the first sen- allegiance to their several injunction. A Trump ap-
tence of the Fourteenth tribes. The Amendment, in pointed federal judge in Tex-
2 6th Floor Amendment: “All per- clear words and in manifest as in a different lawsuit may
sons born or natural- intent, includes the children reach a different conclusion
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