Expert: Birthright citizenship order would mark ‘massive change’ to 157-year-old law

Go Deeper.
Create an account or log in to save stories.
Like this?
Thanks for liking this story! We have added it to a list of your favorite stories.
Minnesota has joined a multi-state legal challenge to President Donald Trump’s executive order to end birthright citizenship, which guarantees citizenship to all babies born in the U.S., regardless of their parents’ legal status.
Supporters of the law say birthright citizenship is enshrined in the 14th Amendment, but Trump and his allies dispute that reading of the amendment. They say there need to be tougher standards for becoming a citizen.
Minnesota Attorney General Keith Ellison is one of the 22 attorneys general taking part in the lawsuit. He told MPR News the executive order is a violation of the U.S. Constitution.
“I do anticipate this time around, the Trump Administration will be better prepared,” he said. “But those of us who swear an oath to uphold the rule of law and support the Constitution, we’re not gonna just let things go by.”
Turn Up Your Support
MPR News helps you turn down the noise and build shared understanding. Turn up your support for this public resource and keep trusted journalism accessible to all.
Jason Marisam, a constitutional law professor at Hamline University and a former Minnesota assistant attorney general, joined MPR News host Nina Moini to break down the case.
Use the audio player above to listen to the full conversation.
Subscribe to the Minnesota Now podcast on Apple Podcasts, Spotify or wherever you get your podcasts.
We attempt to make transcripts for Minnesota Now available the next business day after a broadcast. When ready they will appear here.
Audio transcript
Minnesota attorney general, Keith Ellison, is one of the 22 attorneys general taking part in the lawsuit. He says the executive order is a violation of the US constitution.
KEITH ELLISON: I do anticipate this time around, the Trump administration will be better prepared, but we're not going to-- those of us who are swearing oath to uphold the rule of law and support the constitution, we're not going to just let things go by. So I anticipate there will be as many challenges as there needs to be to protect Americans' and Minnesotans' rights.
NINA MOINI: Joining us to break all this down is Jason Marisam, a constitutional law professor at Hamline University, and a former Minnesota assistant attorney general. Thank you for being here, professor.
JASON MARISAM: Happy to be here.
NINA MOINI: With so much going on just in the past few days, so many issues are in the courts, and we're going to be hearing about all these legal battles. But here on the show, we're really passionate about making sure we break things down and explain to people what's actually going on step by step, and really starting from the top. So we very much appreciate your time. Can you explain for everybody, for starters, what birthright citizenship is and who receives it?
JASON MARISAM: Yeah, so for the longest time, it was just widely understood that if you were born in the United States, regardless of whether your parents are US citizens, if you were born here, you're a US citizen. And to get all the proper paperwork, say, even to get a passport, all you need is that birth certificate saying you were born in the United States. And that's the way it's been for a really long time, and Trump's order sets out to change that and add some new restrictions.
NINA MOINI: Yeah, and the idea being that a lot of people will go through a lot to try to get to the US to ensure that their children could be born here and have that protection of birthright citizenship. Can you explain, sort of, the different legal statuses that this would impact? Because when people come here, even if they're undocumented, they might be seeking asylum. They might enter into temporary protected status. There are so many different statuses. What would this apply to?
JASON MARISAM: Yeah, so what the executive order says, is that if your parents aren't US citizens or lawful permanent residents, you don't get to be a citizen by virtue of being born here. That's the key huge, huge change. It's hard to sort of understate how massive of a change this would be. So if you-- if your parent is here just, you know, sort of without the proper paperwork, OK, you're not a citizen. But also, if your parent is here lawfully, but on a temporary visa, whether it's work or student visa, then you also wouldn't have that birthright citizenship under the executive order, if it stands that was issued by Trump.
NINA MOINI: And can you explain how the 14th amendment, the constitution plays into this?
JASON MARISAM: Yeah, so 14th amendment comes about, you know, after the Civil War. So we had-- until then, the US just had this sort of common law principle that if you're born here, you're a citizen. Then in the 1850s, we have the Dred Scott Case, where the supreme court says that descendants of freed slaves can never be citizens. So people of African descent could never be citizens. So the 14th amendment changes that and codifies that original common law principle of, hey, if you're born here, regardless-- if you're born here, you're a citizen. You can't have any restrictions based on race or any other sort of discriminatory basis.
And for the longest time, that's just been-- the practice has been, and the understanding has been if you're born here, you just have that birth certificate, you get US citizenship. And that's the background of the constitutional history here. And Congress sort of passed statutes with the same language as the 14th amendment, so we've got this constitution, the 14th amendment, with this right. And we've got statutes saying the same thing, and now we have an executive order from Trump adding a new spin on it, if you will.
NINA MOINI: And again, 22 attorneys general coming out with this lawsuit, I believe the first over this particular change in policy. I want to play a little bit, again, for folks from Attorney General Keith Ellison, who was on Morning Edition this morning with Cathy Wurzer, because he had some strong words.
KEITH ELLISON: Birthright citizenship has been a part of American law since the 14th amendment, which was established, you know, well over 100 years ago. And now that is being threatened, so we have to stand up and defend it.
NINA MOINI: And so you already talked about, professor, the background here, but this idea of we have to stand up and defend it, that Ellison is talking about. What are the odds that a lawsuit like this would be successful? Is this going to be more about posturing and trying to send a message to people that your rights are safe? Or do these legal challenges play a part? They seem to just kind of go on forever.
JASON MARISAM: Yeah, I mean, sometimes we see this, just the politicking. Sometimes what's at stake is just there's a republican president democratic AGs are suing, and vice versa. There's a democratic president republican AGs are suing. This is much larger than that. This is actually-- there are people's, you know, rights and potential citizenship rights at stake, and it will need to be resolved by the US Supreme Court at some point. I do see this being litigated through to the Supreme Court, and they'll need to resolve this constitutional question as to the citizenship rights.
When that will happen, how speedily they'll go, there's a lot of ins and outs that can happen with the litigation. So right now, all these states have filed their lawsuit in a federal court in Massachusetts, and they've asked that court to issue an order enjoining, or kind of halting the order from the executive order-- Trump's executive order-- from taking effect. And that is kick-starting this litigation process, that is ultimately, one way or another, heading to the US Supreme Court.
NINA MOINI: So if the executive order took effect when president Trump intends-- February 19th, I believe, is the date that he's put out there-- what would actually happen, given the status of the legal cases?
JASON MARISAM: Yeah, so the attorneys general's case, they've asked the court to halt that and make sure that it doesn't take effect. But assuming it does, things get complicated. So the current practice is, as I said, if you're born in this country, you get that birth certificate, and that's all you need to prove citizenship.
Now, the order-- the executive order would change that. So what does that look like? Do people need extra paperwork or extra proof? You need not just your birth certificate, but some paperwork to show that one of your parents was a citizen? What's that going to look like? Is it going to be the states that need to request this new paperwork, and how is that all going to play out?
It would need to be a new process, and that needs to be figured out. The executive order from Trump doesn't lay that out. It just sort of says, executive agencies, federal agencies go forth and come up with rules that line up with what I've just said. And so we could be in for some clunky times as that is figured out, assuming the executive order goes into effect and isn't halted by courts.
NINA MOINI: Yeah, lots remaining to be figured out and unfold. We certainly appreciate you taking the time to break all of this down for us. Thank you.
JASON MARISAM: Yeah, happy to do it.
NINA MOINI: That was Jason Marisam, a constitutional law professor at Hamlin university and a former Minnesota assistant attorney general.
Download transcript (PDF)
Transcription services provided by 3Play Media.