(WASHINGTON) — The same legal team that successfully challenged President Donald Trump’s first bid to end birthright citizenship is asking a federal judge to clarify that the Supreme Court’s ruling also blocks a second executive order attempting to target specific children who Trump says are exempt from becoming Americans at birth.
Trump’s second birthright order — signed last week as a response to the high court’s June ruling — attempts to deny citizenship to children born on U.S. soil to an “alien enemy,” or a “foreign government employee,” or a parent who “engaged in a commercial transaction” to obtain citizenship or who are born in a territory where citizenship is not conferred by statute.
Attorneys for the American Civil Liberties Union, representing a class of potentially affected immigrant families, filed a motion in federal district court in New Hampshire on Tuesday seeking a declaratory order that the new order effectively defies the Supreme Court.
“Nothing requires this Court to countenance the continued assault on this foundational constitutional principle or issue an endless string of EO-specific injunctions,” the attorneys wrote. “The court should make clear that [Trump] may not take away class members’ birthright under the auspices of these or any other executive actions.”
The Supreme Court did confirm four categories of children born on U.S. soil who would not automatically become citizens: the children of ambassadors, those born on foreign public ships, those born to enemies occupying American territory and members of Indian tribes. But its 6-3 decision left little room for additional exemptions.
Court precedent “indicated that the four exceptions were a closed set,” Justice Brett Kavanaugh wrote in a concurring opinion, “meaning that there can be no additional exceptions recognized based on subsequent circumstances or developments. And the decision has consistently been read that way.”
Chief Justice John Roberts’ majority opinion explained that the key determinant of citizenship was “fixed by the place of nativity, irrespective of parentage.”
The administration argues that the categories specified in Trump’s second executive order are acceptable exemptions from birthright citizenship under the legal interpretation presented by Roberts.
The president’s executive order is set to take effect on Sept. 6.
The ACLU argued in its motion to the court that none of those specified exemptions appear in the Constitution or federal citizenship law and seeks to block the order.
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