Arizona Office of Attorney General

01/21/2025 | Press release | Distributed by Public on 01/21/2025 12:46

Attorney General Mayes Files Lawsuit Against Trump’s Unconstitutional Order on Birthright Citizenship

PHOENIX - Attorney General Kris Mayes announced today that she is joining a multistate federal lawsuit challenging President Donald Trump's unconstitutional order attempting to unilaterally strip citizenship from citizens across the United States, including thousands of babies born in Arizona each year.

"No executive order can supersede the United States Constitution and over 150 years of settled law," said Attorney General Mayes. "While President Trump may want to take this nation back to a time before all American citizens were treated equally under the law - we will not allow him to do so. I am proud to stand with my fellow attorneys general to defend the Constitutional rights that countless American patriots have fought for and died to protect."

The lawsuit, filed in the U.S. District Court for the Western District of Washington, was joined by Washington, Oregon, and Illinois. The complaint asserts that President Trump's executive order to end birthright citizenship in the United States violates the 14th Amendment of the U.S Constitution and the federal Immigration and Nationality Act. It asserts the president has no authority to override the Constitution and that no constitutional provision or law empowers him to determine who should or should not be granted U.S. citizenship at birth.

The 14th Amendment to the Constitution states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

The Immigration and Nationality Act likewise states that "a person born in the United States, and subject to the jurisdiction thereof" is a national and a citizen of the U.S. at birth.

If allowed to stand, the unconstitutional order would cause thousands of newborns and children in Arizona to lose their ability to fully and fairly participate in American society as citizens, despite the Constitution's guarantee of their citizenship.

While the president has broad authority on matters of immigration, Attorney General Mayes' lawsuit asserts the president acted far outside the bounds of his legal authority in issuing this order. Attorney General Mayes asserts that allowing federal agencies to implement and enforce it will harm thousands of Arizonans and the state at large.

Unlawfully stripping U.S. citizens of their right to citizenship will impact their ability to vote, travel abroad, secure housing, access health care, seek employment, run for public office, serve on juries and, more generally, participate fully in American society.

"Birthright citizenship has allowed America to become the vibrant and dynamic home to families from all corners of this planet," continued Attorney General Mayes. "It has helped make our country the strong, prosperous, and great nation that it is today."

The federal order will also cause irreparable harm to Arizonans. Arizona administers numerous programs to support the health and welfare of its residents. Many of those programs are supported by federal funding, which will be reduced as a result of the order. The total loss for Arizona would be in the hundreds of millions of dollars.

The Order would also harm the most vulnerable Arizona children by making it harder for the Department of Child Safety to place children in its custody with extended family members. The Department prioritizes kinship placements because placing abandoned, neglected or abused children with their relatives reduces trauma and improves outcomes for the children.

Very often, those families are only able to accept a kinship placement and the additional financial burden of another mouth to feed because of the financial and resource assistance that DCS and the federal government provide. If children become ineligible for programs or DCS no longer receives the same federal funding and reimbursements, the Department will be unable to provide the same level of assistance to possible placement families, which will almost certainly result in fewer kinship placements.

The Order would also make it harder to administer Arizona's laws requiring that voters show documentary proof of citizenship to register to vote. Voters commonly use birth certificates to prove citizenship. If a U.S. birth certificate were to stop being sufficient for proof of citizenship, voter registration in Arizona would become substantially more difficult and time-consuming.

The lawsuit seeks to block federal agencies from acting on this unconstitutional order.

History of birthright citizenship

Although the Supreme Court's notorious decision in Dred Scott denied birthright citizenship to the descendants of slaves, the post-Civil War United States adopted the Fourteenth Amendment to protect citizenship for children born in the country.

The first sentence of Section 1 of the 14th Amendment - one of a trio of post-Civil War "Reconstruction Amendments" to the Constitution - is clear: "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."
This provision, known as the Citizenship Clause, grants automatic citizenship to anyone born in the U.S., regardless of the citizenship status of their parents.

Three decades after its adoption in 1868, the U.S. Supreme Court upheld the 14th Amendment's promise of birthright citizenship in United States v. Wong Kim Ark .

Wong Kim Ark was born in San Francisco in 1873 to Chinese parents living in the U.S. His parents were not U.S. citizens and returned to China in 1890. After a trip to China to visit his parents in 1895, Wong Kim Ark was denied re-entry into the United States and told he was not a U.S. citizen.
In 1898, the Supreme Court ruled that he was, in fact, a U.S. citizen under the "clear words and manifest intent" of the 14th Amendment.

"Citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution," the majority wrote. "Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization."

The court also clarified who is "subject to the jurisdiction" of the United States: "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." The only exceptions, the court ruled, were foreign nationals in the U.S. in a diplomatic capacity, and those born to non-citizens in U.S. territories under hostile control.

Additionally, the Executive Branch of the federal government has accepted and endorsed this understanding of the Citizenship Clause for more than a century. In 1995, when Congress considered proposed legislation that would have denied citizenship to certain children born in the U.S. based on their parents' immigration or citizenship status, the U.S. Department of Justice's Office of Legal Counsel called the proposal "unquestionably unconstitutional."

A copy of the complaint is available is available below.