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Mayes sues Trump administration over executive order to end birthright citizenship

Arizona AG Kris Mayes on Tuesday, Jan. 21, 2025.
Howard Fischer/Capitol Media Services
Attorney General Kris Mayes details Jan. 21, 2025, why she believes President Donald Trump exceeded his legal authority in declaring that not everyone born in the United States is automatically entitled to citizenship.

Calling the president's actions "unconstitutional'' and "bizarre,'' Attorney General Kris Mayes is asking a federal judge to void Donald Trump’s bid to end birthright citizenship.'

In legal papers filed Tuesday, Mayes said it has been settled law since the 14th Amendment was adopted in 1868 that anyone born in this country is automatically entitled to citizenship. And Mayes noted that interpretation was upheld 30 years later, when the U.S. Supreme Court affirmed the citizenship of a man born in California to two Chinese nationals who were living there.

Now she and colleagues from Washington, Oregon and Illinois are asking a federal judge to immediately bar the Trump administration from implementing the policy while its legality is being decided.

Time is crucial: The executive order the president signed on Monday is supposed to take effect in 30 days. After that point, babies born to parents who do not meet what Trump said are the legal requirements for citizenship will be, according to Mayes "rendered undocumented, subject to removal or detention, and many will be stateless – that is, citizens of no country at all.''

At least two similar lawsuits have been filed in other federal courts, all seeking to block the presidential action.

Not everyone believes that what Trump did is beyond his powers.

Rep. Alexander Kolodin said that the 1898 U.S. Supreme Court case cited by Mayes was based on a situation where the parents, while not U.S. citizens, were in this country legally. By contrast, the Scottsdale Republican said, this order is aimed at those who are not.

And state Sen. John Kavanagh, who introduced a similar proposal to curb birthright citizenship on a state level more than a decade ago, said that, if nothing else, the Trump executive order will force the nation's high court to revisit that old ruling. And the Fountain Hills Republican said the justices are free to change their minds – just as they did in 2022 when they reversed Roe v. Wade and its right to abortion.

The three lawsuits virtually guarantee the case will again reach the nation's highest court.

At the heart of the fight is the 14th Amendment to the U.S. Constitution.

The verbiage is simple: All 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. Approved after the Civil War, it was designed to ensure that African Americans – including former slaves — had citizenship.

In 1898, the Supreme Court heard the case of Wong Kim Ark who was born in San Francisco to Chinese immigrants. The 1882 Chinese Exclusion Act prevented them from becoming citizens.

At age 21, he traveled to China to visit his parents, who had returned to their home country. But when he returned he was denied entry on the ground he was not a citizen based on that same 1882 law.

In a 6-2 ruling, the high court declared that the "explicit'' language of the 14th Amendment voided that interpretation.

Trump's executive order directs federal departments and agencies to reinterpret that ruling. It bars them from issuing citizenship documents in cases where the mother was not lawfully present in this country and the father was neither a U.S. citizen or a lawful permanent resident. And they are forbidden to recognize documents issued by state or local governments.

But it goes even farther. It would deny citizenship to someone whose mother's presence in the country was "lawful but temporary'' and in cases when the father was not a citizen or permanent resident. That could take in even those who are here on visas.

"The privilege of United States citizenship is a priceless and profound gift,'' the president wrote in his order. And he said the 14th Amendment was the right move, overturning the 1857 Dred Scot case which excluded African Americans, both free and slave, from being considered citizens and, by extension, denying them certain legal protections, including the right to sue in federal court.

Trump, however, argued that the amendment "has never been interpreted to extend citizenship universally to everyone born within the United States,'' making no reference to the 1898 ruling.

Kolodin, who is an attorney, said the key to that argument is the phrase "subject to the jurisdiction thereof.'' And he said that, by definition, excludes illegal immigrants.

"They have not come into the country that is obedient to the sovereign,'' Kolodin said.

By contrast, Wong Kim Ark's parents had lived in the United States from before his birth in 1873 in San Francisco and were "engaged in business.'' And the justices said that neither were employed in any diplomatic or official capacity under the emperor of China.

Kolodin said the difference here is that, by entering the United States illegally, those parents have not subjected themselves to the jurisdiction of the country.

Solicitor General Josh Bendor said that interpretation is wrong.

"The text of the 14th Amendment doesn't suggest any difference between whether a person has been lawfully admitted or not,'' he said.

Mayes said this is not just about the law. She said there are real consequences for the children who would fall under the order.

She said it starts with what happens at birth. Mayes said that this could force hospitals to try to ascertain the legal status of the parents before issuing a birth certificate, the basic form of identification for people.

It's even more complicated. She said if hospitals continue to issue birth certificates — after all, they are just a registration of a live birth – those birth certificates could no longer be relied on for other benefits, ranging from getting a driver's license to registering to vote.

And Mayes said there are financial implications for the state.

Right now, children born to those in the U.S. are entitled to various federal benefits like Medicaid. Mayes said the order would allow the federal government to cut off its funding for care provided to those who are not considered citizens — it covers at least two-thirds of the cost — leaving the state with the burden or, potentially, the hospitals that would be providing uncompensated care. The attorney general put the loss at "hundreds of millions of dollars.''

She also said that it could undermine the work of the Department of Child Safety. Mayes said when the agency removes a child from a home, it seeks to place it with a relative, something that may not be possible if the child lacks legal status.

But the attorney general said there's an even more basic reason for her opposition.

"It is designed to intimidate with cruelty and chaos,'' Mayes said. That, she said, is underlined by the fact that this executive order "has nothing to do with national security or protecting American jobs,'' both issues that helped Trump win the 2024 election

"This is a bizarre attempt to undermine 150 years of jurisprudence and the 14th Amendment,'' Mayes said. "And I don't think that voters in Arizona, whoever they voted for, ever thought they'd be really voting to undermine birthright citizenship or to destroy birthright citizenship.''

And what of the fact that eliminating birthright citizenship was one of the things Trump said during the campaign?

"He said a lot of things that were pretty crazy,'' Mayes said.

"This might have been at the top of crazy for him,'' she continued. "But I don't really think voters thought he was going to do this.''

Mayes said one reason she chose not to join the separate lawsuit filed by 18 other Democratic attorneys general came down to finding what she and the AGs from Washington, Oregon and Illinois hope will be a friendly legal reception.

"We know the Ninth Circuit,'' she said, where the case ultimately will go after being heard in federal court in Seattle. That appellate court has a reputation of being the most liberal of all the federal appellate courts in the nation.

Still, the ultimate decision will end up before the U.S. Supreme Court where there already are three Trump appointees and three others chosen by Republican presidents. Mayes, however, insisted she's not worried.

"In our minds, this is not even a close call,'' she said

"We hope that the court will read the Constitution,'' Mayes continued. "We have a lot of 'strict constructionists' on the Supreme Court, and that means they read the plain language of the Constitution and they follow, hopefully, the plain language of the Constitution.''

Some Republican lawmakers in Arizona tried to have the state declare birthright citizenship in 2011, at least in part in their own bid to get the issue to the Supreme Court. But that faltered when a majority of senators refused to go along.