President Donald Trump speaks after signing an executive order in the Oval Office of the White House, Monday, Feb. 3, 2025, in Washington. (AP Photo/Evan Vucci)
A coalition of pregnant women suing Donald Trump over his executive order seeking to end birthright citizenship are pushing back against the administration’s claim that the Fourteenth Amendment of the U.S. Constitution was never meant to grant citizenship to individuals born in America but whose parents were in the country illegally.
The order in question, entitled “Protecting the Meaning and Value of American Citizenship,” directs the secretary of state, attorney general, secretary of homeland security, and social security commissioner to cease recognizing citizenship for children born in the U.S. and whose parents are in the country illegally or on a legal but temporary basis.
Filed only hours after Trump took office for the second time, the measure was immediately met with a flurry of lawsuits from every corner of the country asserting that the administration was unilaterally attempting to undermine more than 150 years of established legal precedent.
Among those challenging the administration, five pregnant women and two immigrant advocacy groups filed a suit in Maryland federal court, condemning the order as a “flagrant violation” of the Fourteenth Amendment and Citizenship Clause, “which guarantee the fundamental right to citizenship for all children born in the United States.”
The administration last week argued widely-held views of the Fourteenth Amendment granting jus soli (“right of the soil”) citizenship and a landmark 1898 Supreme Court case have been misinterpreted for over 100 years. In fact, the administration’s position is that Trump’s executive order merely enforces already existing law, specifically highlighting the phrase “subject to the jurisdiction thereof” contained in the Constitution.
From the filing:
As was apparent from the time of its enactment, the Citizenship Clause’s use of the phrase “subjection to the jurisdiction” of the United States contemplates something more than being subject to this country’s regulatory power. It conveys that persons must be “completely subject to [the] political jurisdiction” of the United States, i.e., that they have a “direct and immediate allegiance” to this country, unqualified by an allegiance to any other foreign power. Just as that does not hold for diplomats or occupying enemies, it similarly does not hold for foreigners admitted temporarily or individuals here illegally.
The administration also cut against most legal experts in asserting that the Supreme Court case U.S. v. Wong Kim Ark did apply to the children of illegal immigrants. Wong Kim Ark, born in California in 1870, was prevented from returning to the U.S. in 1896 with customs officials citing the Chinese nationality of his parents as the reason he was not a citizen. The court went on to side with Wong Kim Ark in holding that he was a citizen under the Fourteenth Amendment.
Plaintiffs on Monday fired back, arguing that the administration’s purported understanding of the Amendment is “internally inconsistent” and defies both the Constitution and the court’s holding in the Wong Kim Ark case.
From the plaintiffs’ 19-page brief:
Defendants’ reading of “subject to the jurisdiction” of the United States is internally inconsistent, and impossible to square with either constitutional text or Wong Kim Ark. Defendants at times argue that a person is covered by the Citizenship Clause only when they have “complete” allegiance to the United States, “unqualified by ‘allegiance to any alien power.’” Such a test does not appear in the Citizenship Clause’s text, which asks only whether a person is “subject to the jurisdiction” of the United States — not whether a person is subject to the “exclusive jurisdiction” or possesses some particular quantum of allegiance.
The plaintiffs also emphasize that the allegiance “test” proposed by the administration runs directly contradictory to the case of Wong Kim Ark, whose parents were “subjects of the emperor of China” and undoubtedly “owed a measure of allegiance to China.”
“Defendants try to temper the radical consequences of their revisionist account by suggesting that a person owes complete allegiance to whatever jurisdiction they are domiciled in, which would exclude temporary visitors,” plaintiffs wrote. “There is little support for Defendants’ gloss, and it is hard to square with statements elsewhere in their brief questioning the citizenship of children born in the United States to foreign nationals. A noncitizen present in the United States is subject to this Nation’s jurisdiction while they are here, regardless of the duration of their stay.”
Plaintiffs concluded their argument by stating that the administration’s “shifting and idiosyncratic views on the nature of allegiance underscore how far they’ve strayed from the constitutional text, which asks simply whether a person is ‘subject to the jurisdiction’ of the United States.”
Elsewhere in the filing, plaintiffs asserted that Trump acted “without power” when he signed the order and in doing so “violated the separation of powers.
“The Citizenship Clause of the Fourteenth Amendment, as the Supreme Court has affirmed, guarantees birthright citizenship. Federal statutes do the same,” they wrote. “The President has no unilateral authority to override the Supreme Court’s interpretation, amend the Constitution, or ignore a statute enacted by Congress.”
