Title: Trump's Executive Order on Birthright Citizenship

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Brian Lehrer: Brian Lehrer on WNYC. Now we'll continue looking at one of President Donald Trump's executive orders signed shortly after his inauguration. This came up in the last segment. We'll take a closer look now. The end of birthright citizenship. I'm going to read for you the exact text from Section 2A of Trump's executive order. This is sourced from whitehouse.gov on what the policy of this order entails. "It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship or accept documents issued by state, local, or other governments or authorities purporting to recognize United States citizenship to persons, one, when that person's mother was unlawfully present in the United States and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth, or two, when that person's mother's presence in the United States was lawful but temporary, and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth."

There's a lot to unpack there, and we'll dissect exactly what it means shortly, but first, I'll note that civil and immigrant rights advocates, including the ACLU and Make the Road New York, have already banded together to sue the Trump administration over this executive order. Joining me now is Harold Solis, legal director of Make the Road New York. Mr. Solis, thank you for joining us. Welcome to WNYC today.

Harold Solis: Hi, Brian, thank you for having me on.

Brian Lehrer: Can you start with a basic definition of birthright citizenship for people for whom this is a new conversation?

Harold Solis: Sure. Birthright citizenship is a legal concept that is deeply rooted in our American tradition here in the United States. It actually has its grounding in the 14th Amendment of the US Constitution. I know you read out loud the text from last night's executive order, which is long, a bit convoluted and complicated to grasp. I want to compare that to the opening language of the 14th Amendment, which clearly lays out and answers the question that we're now trying to grapple with as a nation, which is simply that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, period.

In plain terms, what this means is that a person who was born here without a question is a US citizen. This is a legal concept that has been firmly understood to include individuals born here, regardless of, for the most part, who their parents are. I should note, and maybe we can talk more about this, but the only two recognized exceptions to this idea of birthright citizenship are for people who were born to foreign diplomats or individuals who were born in US territory that has been conquered by a foreign country. As you laid out when you were reading from the text last night, the executive order does not invoke either of those exceptions.

Brian Lehrer: Trump's argument is, and I guess this is what you're going to wind up debating in court, that, "The 14th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States." I think if he were to go a line further, he would say that this was in the context of the immediate post-slavery period, and it was only intended to make sure that all Black people born in the United States were seen as full citizens, not three-fifths of a person as in the original Constitution. The furthest thing from their minds at the time when the 14th Amendment got ratified was undocumented immigrants. Your response.

Harold Solis: Sure. You're right. This is definitely something that we'll be talking about in court. The plain and simple answer to this is that, first of all, when the 14th Amendment was ratified, one overarching principle and animating principle behind the amendment itself was to ensure that the question of citizenship would not ever again be left to the whims of any political branch or any single individual, including the president. Off the bat, we're in dangerous territory here, where we are now witnessing an attempt by a president trying to upend our constitutional order by choosing who is and who is not a citizen of this country.

That's a threshold question that should worry all of us because if we allow this to be the norm, if we allow this to go unchallenged, then it is unclear to us, where does this end? Will we now live in a country where citizenship is not this fundamental safeguard that we all understand it to be, but rather is something that can be turned on or off depending on who is in office?

Brian Lehrer: I see people are already calling in, so let me make sure everybody has the phone number. Anybody here a citizen based on birthright citizenship, want to call in and tell a little bit of your story and give your opinion or anyone on any side of the issue? 212-433-WNYC, 212-433-9692, call or text. You were trying to say something else?

Harold Solis: Sure. No, I was just going to add that, to your earlier question, the Supreme Court has actually ventured very closely to this question. It was actually right not too long after the Civil War, not too long after the 14th Amendment itself was ratified. In the late 1800s, we as a country were living through another moment where anti-immigrant fervor was high. There's a famous case that dealt with this question around whether an individual who was born in the United States to parents at that time also of foreign descent, if this individual could obtain citizenship by birth. The case is Wong Kim Ark, it's settled law. It's something that most lawyers who learn about the 14th Amendment, we learn about it in law school.

Brian Lehrer: Given the current makeup of the Supreme Court, and we know that they have not been reluctant to overturn precedent in the past, how confident are you that Alito and Clarence Thomas, and any of the others are going to see it the way you're going to go in and argue?

Harold Solis: I am confident that any court that looks at this question, looking at the text of the 14th Amendment, will see the answer plainly in the Constitution itself. I'm optimistic that no matter who we get at any level of our judicial system, that they'll see that birthright citizenship is something that the Constitution guarantees to all people born in this country.

Brian Lehrer: Before we take a few phone calls, just to put some of our listeners here and US citizens on the basis of birthright citizenship at ease, and as our previous guests pointed out, this would probably include Usha Vance, wife of the new vice president, there's nothing in that executive order that I read that would make it retroactive. Right? This would be for future births in the United States to people who are not already citizens. It would not be retroactive to people of whatever age who may be US citizens already on the basis of birthright citizenship.

Harold Solis: That's right, but that should give us cold comfort, to be honest. This is the definition of arbitrariness. There's a 30-day built-in waiting period. Why? The question really answers itself, which is that this is all based on policy and political decisions being made by the new Trump administration. It's not grounded in law. It should give us, like I said, cold comfort because it easily could have been, if they wanted to, there's no limiting principle, really, that they articulated last night that would have prevented them from going retroactive.

Brian Lehrer: Are you saying that unless the Supreme Court or some other court stays this in the next 30 days, it'll take effect on February 19th or thereabouts, with respect to anybody born in the United States whose parents are here in that status?

Harold Solis: Right. Unless we see immediate judicial relief, what we're likely to see is that 30 days from now, children born to parents who lack citizenship or LPR status, lawful permanent residents, we'll start to see A, now, American-born children being born without citizenship, being born without any clear status, period. We'll start to see the various agencies that Trump ordered to implement his order start denying passports, Social Security cards. More importantly, we'll start to see the creation of a second-class subclass population being born right under our eyes.

Brian Lehrer: Again, before we take a few phone calls, would you explain that dense text of Trump's executive order that I read at the beginning of the segment? There were specific things in there under two different scenarios that pertain to the mother's status and the father's status. Can you put it in plain English, so everybody knows what they may be facing?

Harold Solis: Sure. First, the common denominator is that the text says that as for the father, it applies to fathers who are neither US citizens or have lawful permanent residence. As for the mother, there are two scenarios. One is the scenario where the mother simply has no immigration status whatsoever. Then the second scenario is the one you were alluding to earlier that, if we're looking in hindsight in the past, potentially would have applied to the vice president's wife, which is this scenario where the mother is here in this country in some sort of temporary immigrant status, which could be as a tourist, could be as a student. A range of temporary statuses short of lawful permanent residence.

Brian Lehrer: We are getting a number of calls, which I'm not going to take because our time is limited, and I want to focus on issues that are actually in play. I want to say that we're getting these calls anyway, Harold, because it shows the concern that has been unleashed. We're getting a number of calls and texts from people who are birthright citizens of the United States. Some of them, looking at what the callers are saying, are even quite old and wondering if their citizenship is going to be revoked. Let's just repeat what we said a minute ago to put at least those people at ease. This is not retroactive, the way Trump is proposing it. Say that one more time. Right?

Harold Solis: Correct. It is not retroactive, based on the text that he issued last night.

Brian Lehrer: Having said that, Patrick in Brooklyn, we'll take his call. Patrick, you're on WNYC. Hello.

Patrick: Hello. Good morning. Thanks for having me. That's actually exactly what I was concerned about. I have a triple concern because I am, I guess, technically a birthright citizen, even though I'm almost 50. My parents came over here from Panama, which is the other part of my concern. My father actually had joined the military during Vietnam, and that was, I guess, a pathway to citizenship at that point. That being the case, my mother still wasn't a full citizen when I was born in this country. Then it caused issues because, part of the reason I never joined the military was because of the invasion of Panama when I was a kid. It's looking like he's talking about invasion of Panama by Bush Senior.

Brian Lehrer: By the first president Bush. Yes.

Patrick: Yes. Now we got another president who's talking like he's trying to do invasion of Panama 2.0. He's talking like he wants to expand American imperialism and revivify it on a physical level, not just economic. It's disturbing. Then, it's also disturbing when people say things like, Elon Musk giving a Nazi salute is not that important or not as important as the citizenship issue. It's like, no, this is all connected, especially when Elon is an Afrikaner born in apartheid South Africa, giving a Nazi salute, while Trump is releasing the militant faction of his brigade and talking about revivifying American imperialism, and kicking out birthright citizens, and invading more countries.

Brian Lehrer: Right. I'll just say, in fairness to Elon Musk, that there's definitely not clarity that he was giving a Nazi salute as opposed to just an awkward version of the thank-you gesture to a public crowd, as we said before. Certainly, on the potential of the United States invading Panama, Patrick, that's going to be another segment that we take up explicitly and talk about that on the show, on a future day. We can't do everything in one day because there's so much, but our guest is an expert, is a lawyer pertaining to immigration. Anything else you want to say about that? Otherwise, we'll move on.

Patrick: No, I just wanted to say that to let people understand some of the very real concerns that people, birthright citizens, immigrants, all of this happening at once is causing a lot of concerns for people in this community, including people who may not have thought themselves part of this community because they only considered themselves citizens and didn't realize, "Oh, technically, my parents weren't actual citizens when I was born here."

Brian Lehrer: Patrick, thank you. I'm going to leave it there. Please call us again. Here's a question for you, Harold, from a listener in a text. It says, from the executive order text that you read, I read at the top of the program, there seems to be a difference between the mother's and the father's status. Isn't that a violation of equal protection, too? What's the deal? Can you answer that?

Harold Solis: Yes. Thank you for that question. I think the executive order raises a number of questions, including this idea that now the government is going to be distinguishing who is afforded citizenship based on their parentage, on a mother's potential status versus the father's potential status. It certainly raises a lot of questions. Absolutely. That's part of the reason why, immediately after this was issued, we filed our lawsuit. Our hope is that this never gets off the ground, that it never actually sees the light of day, so that people like Patrick and the person who asked this question can rest a little easier, knowing that the law and the Constitution has been upheld.

Brian Lehrer: Here's another question on the technicalities of this executive order if it stands. What about a lesbian couple who got pregnant with a sperm donor? Is the sperm donor the father? If the non-pregnant mother is the US Citizen/permanent resident, is the couple okay?

Harold Solis: Unclear to me. As I look at the text, I think they even try to define what constitute a mother and a father. I think the larger point here, Brian, is that, less than 48 hours ago, these were questions that people didn't have to grapple with. It felt rather clear to people who were parents themselves or were birthright citizens. It felt relatively clear to them where they fit in terms of our citizenship legal order. Now, a day after Inauguration Day, people are having all sorts of questions. This is the chaos, the kind of fear that we were hoping to never see. We're starting to see it manifest itself.

Brian Lehrer: Yes. Last thing, and this is actually going to be an addendum question off the topic of birthright citizenship. For you as a lawyer at Make the Road, it had been telegraphed that some kind of immigration raids would start at 6:00 AM today in some cities in the United States. Originally, it was going to be Chicago, but then when word got out that it was going to be Chicago, the so-called border czar Tom Homan said they were going to change places or change tactics because people had word. It's 11:13 in the morning. Is something happening anywhere in America that you're aware of?

Harold Solis: It's still early today. I'm checking in with our team because we have clients across the city, we have allies across the nation that have been waiting with a great sense of fear for this day. I know we're all trying to stay in touch and trying to communicate with our clients and our communities to see if we're starting to feel the impact.

Brian Lehrer: To that point, because you're specifically with Make the Road New York, I want to play a clip from NPR's Morning Edition today of the mayor of Chicago, Brandon Johnson, saying how he's going to respond if there's a raid in his city. I'm going to ask you what you see Mayor Adams' preparation being so far and if it's the same more or less as what we're going to hear right now from Chicago. Mayor Johnson

Mayor Brandon Johnson: As a welcoming city and as a sanctuary city, we are firm in that our police department will not intervene or participate in any way as federal agents. None of our sister agencies or our city departments will cooperate or intervene in any way, or any shape or any form.

A Martinez: Can you stop ICE, Immigration and Customs Enforcement?

Mayor Brandon Johnson: Look, they're a federal agent. If they come in with warrants, if they come in with their authority, no, we won't, again, intervene or support in any way. What I can say is that we have worked with community-based organizations as well as other stakeholders so that the people of Chicago know their rights. That's the part that's most important here. The people can continue to go to work, they can go to school, they can use our public facilities without the fear of local police departments giving access to these federal agents to disrupt the flow and what we're doing in Chicago.

Brian Lehrer: Chicago mayor, Brandon Johnson, with A Martinez on Morning Edition. Harold Solis from Make the Road New York, would you say the Mayor Adams policy is more or less what we just heard from Mayor Johnson?

Harold Solis: Unfortunately, no. I think the mayor has shown himself to be more interested, unfortunately, in cozying up with the Trump administration. I think his words have shown that. Over the course of the last year or so, he's shown a great willingness to circumvent our local laws that address these questions about ICE's access to our communities and the various city laws that we have in place to ensure that families and our neighbors can go to school, can go to work, and have some sense of peace, knowing that they'll be able to come back home to their loved ones. No, I think [unintelligible 00:21:56]

Brian Lehrer: As just a quick follow-up, and we discussed this in our previous segment with our previous guests, it does seem to be more or less bipartisan and broad consensus position in the country at this point that people here illegally who commit violent crimes deserve to be deported. Is your position at Make the Road that you want to see them protected?

Harold Solis: I think, Brian, when we talk about this question in the abstract, you get varying answers, like some of the ones that you got from your earlier guests. I think when you talk to people, and you ask them this question about whether somebody should just be picked up and deported, most people have a problem when basic things like due process aren't followed or aren't part of the process that decides these sorts of questions. I think people have a hard time understanding or going along with this idea of people being rounded up without any protections in place to ensure that people are being treated in accordance with the law.

Brian Lehrer: Harold Solis, legal director of Make the Road New York, thanks a lot for joining us today.

Harold Solis: Thank you, Brian.

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