Trump citizenship order ‘overreached by a mile’ – California attorney general

Donald Trump “overreached by a mile” with his attempt to dismantle the longstanding constitutional guarantee of birthright citizenship, the California attorney general, Rob Bonta, said.

California along with a coalition of states and the city of San Francisco are suing the administration over an executive order issued just hours after Trump was sworn into office on Monday that would deny automatic citizenship to some children born in the United States – a move they argue is in “flagrant violation” of the US constitution.

“Just because he’s the president doesn’t mean he can change the US constitution,” Bonta, a Democrat, said in an interview this week. “In fact, it is absolutely clear – it is civics 101 – that he cannot.”

The lawsuit, led by California, New Jersey and Massachusetts and filed in the US district court for Massachusetts, argues the order would cause “irreparable harm” to the states and their residents by denying citizenship rights to the US-born children whose parents are not lawful residents. A second multi-state lawsuit challenging the order was filed in the western district of Washington, where a federal judge on Thursday temporarily blocked the order from taking effect. The American Civil Liberties Union and other groups representing pregnant women whose children would be affected by the order have also sued.

Trump’s order, titled “Protecting the Meaning and Value of American Citizenship”, makes the audacious claim that the 14th amendment has been wrongly interpreted and automatic citizenship should no longer extend to children born on US soil to parents living in the country unlawfully or temporarily, such as foreign students or tourists.

Under the order, federal agencies would cease to issue legal documents that recognize US citizenship, such as social security numbers and US passports, to these children. It would take effect on 19 February – meaning it would not be applied retroactively.

In California, where nearly half of all children have at least one immigrant parent, Bonta’s office estimates the order could affect as many as 24,500 babies born annually in the state. If allowed to stand, these children would lose their eligibility to access public health and other federal benefit programs, Bonta said, while also enduring the constant “fear and trauma of being deported”.

Bonta, who was born in the Philippines and moved to California with his family as an infant, said the administration should be prepared to put the case in its “loss column”.

“That interpretation that Mr Trump posits in his executive order has never been adopted by anyone – not by Congress, not by any court. It’s never been accepted as an appropriate interpretation of the birthright citizenship right that is enshrined in the US constitution,” he said, adding: “We’re very confident – it’s in clear violation of US law and US constitution.”

Birthright citizenship, rooted in English common law and enshrined in the 14th amendment, was ratified in the aftermath of the civil war to ensure citizenship to all persons “born or naturalized in the United States”, including formerly enslaved people. Decades later, the supreme court affirmed the right, in a landmark case brought by Wong Kim Ark, the California-born son of Chinese immigrants prohibited by the 1882 Chinese Exclusion Act from becoming citizens. Congress later codified the language in the Immigration and Nationality Act.

Since his first term in office, Trump has claimed that automatic citizenship encourages illegal immigration and “birth tourism” – the act of pregnant women traveling to the US to obtain citizenship for their child. During an Oval Office signing ceremony on Monday, Trump called the principle of birthright citizenship “absolutely ridiculous” and asserted that his administration had “very good [legal] grounds”.

Trump’s interpretation of the 14th amendment is at odds with legal and scholarly consensus and, in their lawsuit, the states argue that the president cannot nullify a constitutional right by what they call “executive fiat”. Amending the constitution is a protracted process requiring a two-thirds vote in both chambers of Congress – or a constitutional convention called for by two-thirds of the state legislatures– and ratification by three-quarters of the states.

The lawsuit is the first legal action taken by the state against the new administration. But there will almost certainly be more to come. During Trump’s first term, California sued the administration more than 120 times, winning roughly two-thirds of the cases. Earlier this month, the California state legislature held a special session to allocate funds for legal challenges against the Trump administration.

Bonta said his office was actively reviewing the blitz of policies and directives unveiled over the course of Trump’s first days in office. On Wednesday, the attorney general accused the administration of attempting to “bully” California into carrying out the president’s mass deportation plans. It was in response to a justice department memo ordering federal prosecutors to investigate state or local officials who refuse to cooperate with the president’s immigration crackdown.

“I’m happy to work with the Trump administration on all things that benefit our mutual constituents,” Bonta said, listing efforts to combat drug and human trafficking, organized retail crime and hate crimes as possible areas of collaboration. “But it will never be negotiable that we allow the Trump administration to violate the US constitution and the rule of law.

“The way to not be sued by the California attorney general is to act lawfully,” he said. “It’s very simple.”