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Spokane, Washington  Est. May 19, 1883

Executive order to limit birthright citizenship could have broad impact, WSU professor says

Lawyers for the state of Washington and the federal government will be back in a Seattle courtroom this week as the Trump administration seeks to redefine who automatically qualifies for American citizenship.

Hours after he began his second term, President Donald Trump issued an executive order to restrict birthright citizenship, which if it takes effect, would require a child born in the U.S. to have at least one parent who is either a legal permanent resident or citizen to be automatically given American citizenship.

The move sparked immediate backlash and legal challenges, including from Washington Attorney General Nick Brown, who joined three other states in filing a lawsuit to challenge the measure.

The order was put on hold by a federal judge in Seattle, who wrote in a temporary restraining order that there was a “strong likelihood” the lawyers would successfully prove the executive order violated both the 14th Amendment of the Constitution and the Immigration and Nationality Act.

Washington’s attorney general’s office joined Illinois, Oregon and Arizona in challenging the executive order, though a separate group of 18 states has filed a similar lawsuit in Massachusetts.

With the temporary restraining order set to soon expire, Brown will now seek a preliminary injunction during a court hearing Thursday morning to further block the order from taking effect.

Trump’s executive order challenges a long-held Supreme Court precedent and could perhaps allow for additional efforts to restrict citizenship, according to Michael Ritter, an associate professor at Washington State University.

In an interview with The Spokesman-Review, Ritter said the executive order adopts “a rather new argument” on the scope of birthright citizenship.

“This is kind of a settled question, I would say, by the U.S. Constitution, the 14th Amendment and also the U.S. Supreme Court more than 100 years ago in the U.S. v. Wong King Ark,” Ritter said.

The order, Ritter said, comes after Trump discussed restricting birthright citizenship in his first term, though his latest efforts were a “much more significant step in that direction.”

As he signed the executive order in the Oval Office, Trump acknowledged it would likely face legal challenges.

“We think we have good ground, but you could be right,” Trump said. “You’ll find out. It’s ridiculous. We’re the only country in the world that does this with birthright, you know, and it’s just absolutely ridiculous.”

Currently, 32 other countries – including Mexico and Canada – guarantee unrestricted birthright citizenship, and an additional 32 countries guarantee birthright citizenship with some restrictions.

Ritter said while the definition and scope of citizenship has long been discussed, it was much more widely debated in the 17th and 18th centuries.

The 14th Amendment, ratified in 1868, overruled the Dred Scott decision by the U.S. Supreme Court, which found that the U.S. Constitution did not extend citizenship rights to descendants of slaves.

“Birthright citizenship was a way of formalizing that norm of birthright citizenship we inherited from England, but it was also a way of strengthening equality rights for individuals who didn’t happen to be white,” Ritter said.

According to Brown, more than 150,000 newborn children every year would be denied citizenship if the order were to take effect, which Ritter said could have potentially far-reaching implications.

“Such children would not be recognized as American citizens, and they would not receive attached rights that are related to being American citizens,” Ritter said, adding that it could also set a precedent for future actions to narrow citizenship rights.

The executive order, Ritter said, likely “has a rocky future ahead of it,” as challenges to its validity work their way through the federal court system.

“I think the hope the Trump administration is perhaps that the case will eventually make it up to the Supreme Court, and the 6-3 conservative majority on the Supreme Court may be sympathetic to narrowing the scope of birthright citizenship,” Ritter said.

Ritter added that the Supreme Court has “shown itself not to be hesitant about overturning major precedent” and cited the recent Dobbs decision, where the court found that the women did not have a constitutionally protected right to an abortion. The decision, issued in 2022, overruled nearly 50 years of precedent established in Roe v. Wade.

“The case could end up at the Supreme Court, it may not end up at the Supreme Court,” Ritter said. “But I think this might be the type of interesting question that the Supreme Court would be willing to accept. The Supreme Court is more likely to accept questions that it finds novel or interesting constitutional or legal questions or cases.”