This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Taryn Druge, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
The Trump administration, as expected, released a raft of immigration-specific executive orders immediately upon assuming office.
We expected this, and postponed publication of our usual advertorial by a week so we could share information about the executive orders with you. We were surprised by the breadth and variety of the orders; they cover everything from birthright citizenship to end the COVID-19 vaccination requirement for green card applicants.
Rather than do a superficial summary of all of them, we want to focus on the most important orders, one at a time, and so we’ll start this week with what is, in our view, the most important of the Executive Orders — Protecting the Meaning and Value of American Citizenship, which purports to abolish birthright citizenship for the children of certain illegal immigrants.
First, what does the order say? It says that babies born on U.S. soil on or after February 19, 2025, are not US citizens if the baby’s mother (not father!) is unlawfully present or has temporary lawful status, and the baby’s father (not mother!) is not a US citizen or green card holder.
Here at Statutes of Liberty, we try to be measured in our analysis of changes to immigration law and policy. On this subject, it is difficult to maintain our equanimity, because this isn’t a close call — purporting to abolish birthright citizenship by executive order is ludicrous. It is already the subject of federal litigation, and we expect an injunction to be issued in short order.
When the Trump administration seeks to have the injunction quashed, the litigation may eventually proceed, through the appellate process, to the Supreme Court; and if it does, the administration will lose 9:0.
It has been settled Constitutional law since Wong Kim Ark v. United States that all those born in the United States, with the exception of children foreign diplomats (and, as a historical matter, members of certain Native American tribes) are United States citizens, because the Fourteenth Amendment to the United States Constitution states plainly that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
No one seriously doubted at the time that this was the meaning of the Fourteenth Amendment. That includes, amusingly, one of the Justices who dissented in the case, Justice Harlan. Harlan worried aloud, in a lecture to law students, about large numbers of Chinese immigrants “root[ing] out the American population” in the West.
But he admitted, with admirable candor, that “[o]f course, the argument on the other side is that the very words of the Constitution embrace such a case” as that of Wong Kim Ark. The Constitution is unambiguous on the subject, as the Administration will find out in short order.
As always, we are grateful for your questions and comments, and will do our best to respond.
