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Ananya Achaya A
Amity University, Noida
Soon after US President Donald Trump passed an executive order regarding birthright citizenship on 20th January earlier this year, a Seattle federal judge firmly responded by declaring it unconstitutional.
The order, citing the 14th Amendment of the Constitution stated that those born in the United States are privy to citizenship both of the country and the state in which they live. Trump reasons that since the privilege of US citizenship is a “priceless and profound gift”, there must be certain restrictions it is privy to it. One such limitation is that henceforth when a child is born to parents who are not US citizens, he or she is not given the “privilege of United States citizenship”.
Further, considering that clause (b) under Section 5 of this order provides that the order shall be implemented consistently with applicable law, its unconstitutionality is brought to light. Twenty-two states filed lawsuits to prevent the Trump administration from putting an end to the birthright citizenship policy that dates back over a century; since the Civil War. They contend that this policy has been settled over the aforementioned period and as New Jersey Attorney General Matt Platkin said, “The President cannot, with a stroke of a pen, write the 14th Amendment out of existence.”
The executive order shows a disregard for the basic jurisprudential principle of jus soli or right of soil - the right of a child to acquire citizenship in the territory they are born into. The 14th Amendment served as protection to this right and has now been infringed upon, according to those against this order. As of 22nd January, New Jersey, California, Massachusetts, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont and Wisconsin were a part of the lawsuit to block it.
More apprehension was seen when US District Judge Deborah Boardman referred to citizenship as the “most precious right”, citing a need for a national injunction to stop the Trump administration from implementing an order that interferes with it. Asylum Seeker Advocacy Project and Court Appointed Special Advocates (CASA) were some among the numerous plaintiffs who brought this pressing issue to Boardman’s notice.
On the other hand, eighteen Republican attorney generals seek to defend the presidential order. In Trump’s words, birthright citizenship was meant for children of slaves, not for the world to pile into the USA. This statement goes to show the fundamental defence the Republican government is aiming to back - that an influx of immigrants is detrimental to the country’s progress and that in the national interest, citizenship must become a privilege rather than a right.
How does this order affect Indian immigrants?
According to the Pew Research Centre’s data from 2024, Indians are the second largest group of immigrants in the US, with about 1,45,000 immigrants just last year. Suffice it to say that this executive order has an adverse effect on all immigrants of Indian origin. According to him, India has always been open to their legitimate return.
Under the order, children born to Indian parents in the US will not be granted citizenship. This is regardless of the parents’ visa status, and regardless of how many years the parents have resided in the country. Moreover, those in line for green cards are now faced with the issue of even longer wait lines since they have to apply for their children as well. While Indian students constitute a large percentage of international students in the US, children born to them while they are on student visas will not be granted citizenship either. Inarguably, Trump’s order has created a new set of hurdles for those wishing to pursue the American dream.
What next?
Respite can be sought by immigrants in the second nationwide halt put on this order by Justice Boardman on 5th February. It is, however, unlikely that the Trump administration will stop at this. Given the appeals, birthright citizenship might likely remain a question despite being backed by a constitutional amendment. It is up to the judiciary to ensure that the executive does not overstep its jurisdiction, and keep constitutionality intact.
Scholars believe birthright citizenship originated in colonial times. During that period, certain countries were keen on increasing their settlements’ populations, thus encouraging immigrant-friendly policies. Rejecting this principle simply because “aliens will be sent back” and the rest of the world is “piling into” the USA reflects poorly on the country’s democratic structure.
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