Attorney General Kris Mayes speaks on Jan. 21, 2025, at a press conference announcing Arizona was joining Washington, Illinois and Oregon in a lawsuit challenging President Donald Trump’s executive order that purports to end birthright citizenship in America. Photo by Gloria Rebecca Gomez | Arizona Mirror
Just a day after President Donald Trump issued an executive order declaring that the U.S. Constitution no longer grants birthright citizenship to people born on American soil, Arizona’s Democratic leaders are pushing back in a lawsuit that aims to nullify the action, lambasting it as unconstitutional.
“The President wants to twist history and have us pretend that the words in the 14th Amendment and a century-and-a-half of legal precedent do not mean anything. He is dead wrong,” Arizona Attorney General Kris Mayes said at a news conference announcing the lawsuit.
Gov. Katie Hobbs likewise criticized the move to end birthright citizenship as “un-American” and said it would harm the state’s agencies and residents.
“It would cause chaos in our state government, making it harder for our state to deliver the critical services that Arizonans rely on and burden Arizona taxpayers with increased costs,” the governor said in a written statement.
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In a two-pronged strategy, the Grand Canyon State joined Washington, Illinois and Oregon in filing a lawsuit against Trump and the U.S. government in a Washington state federal court, while 18 other states,San Francisco and Washington D.C. filed a similar lawsuit in a Massachusetts federal court.
Both groups of states accuse the president’s executive order eliminating the tenet of birthright citizenship, which has nearly two centuries of history in America, of violating the U.S. Constitution and seeking to wield authority that is not not within the scope of the executive branch’s power.
The order would deny citizenship to children born in the U.S. after Feb. 19, 2025, if their father is not a U.S. citizen or lawful permanent resident and their mother also does not have legal citizenship status or is in the country under a temporary visa. In 2022, roughly 6,000 children were born to noncitizen moms in Arizona and as many as 3,400 babies had parents who both lacked legal status.
Mayes criticized Trump for attempting to erase a constitutional protection he has no power over.
“No president can unilaterally change the constitution on a whim. Only constitutional amendments can change the constitution,” Mayes said.
Modifying the U.S. Constitution can only be done by Congress, and requires a two-thirds majority vote from both chambers. And then amendments must be ratified by three-fourths of the individual states. Even with Republicans controlling the presidency and both chambers of Congress, that remains a political impossibility without Democratic support.
In the lawsuit, Mayes and her fellow attorneys general wrote that stripping yet-to-be-born children of their citizenship based on who their parents are would upend more than 150 years of legal precedent and place financial burdens on the states they live in. Removing those children from the Census counts of citizens who are eligible for public benefits, like state-managed low-income health care plans and foster care or adoption assistance programs, would slash the amount of federal funding states receive to support those initiatives. But the number of people who need help doesn’t change.
On top of that, federal dollars that state agencies depend on would also be at risk. In fiscal year 2025, Arizona received $935,000 from the Social Security Administration, and expects to receive more than $1 million in fiscal year 2026. That money goes towards expenses beyond just processing Social Security number applications. But if there’s a cut to the number of citizens Arizona can declare, the state estimates it could lose upwards of $14,000 a year from that funding package, according to the lawsuit.
At the request of the Hobbs administration, Arizona’s Department of Health Services and the Arizona Health Care Cost Containment System filed declarations in the lawsuit underscoring the harm that Trump’s executive order would have on the agencies. Krystal Colburn, the chief reporting officer and assistant state registrar of ADHS, wrote that it is currently impossible to determine a parent’s legal status from a birth certificate, yet certificates are used for the application of many other documents, like passports and driver’s licenses.
No president can unilaterally change the constitution on a whim. Only constitutional amendments can change the constitution
– Attorney General Kris Mayes
Jeffery Tegen, the assistant director of the division of business and finance for AHCCCS, pointed out in his declaration that the state’s Medicaid program would need to significantly revise its protocols if it could no longer rely on birth certificates to determine a newborn’s eligibility, potentially causing health care delays for all children. And, he added, removing thousands of babies from the program due to their new ineligibility under the executive order would strain Arizona’s emergency health care system.
Arizona is also unique in having strict rules governing voter registrations. Unlike in many other states, voters must present proof of citizenship to be eligible to vote in statewide and local elections. The most popular ways to comply with that rule are by presenting a valid birth certificate or a driver’s license — which itself can be backed up during the application process with a birth certificate. Mayes warned that eliminating birthright citizenship would throw birth certificates into question , resulting in a costly and complicated overhaul of Arizona’s election processes.
She also questioned the burden on hospitals, which issue birth certificates but don’t currently have a process in place to determine the citizenship status of parents.
The guarantee that anyone born within the U.S. is automatically a citizen, with all the rights that come along with that status, has been repeatedly reaffirmed by Congress and the courts, Mayes added. The 14th Amendment was first ratified shortly after the end of the Civil War, and it was intended to overturn the U.S. Supreme Court’s ruling in Dred Scott v. Sanford, under which Black Americans and their descendants were denied citizenship.
Later, the high court clarified that even children born in the country whose parents are not U.S. citizens are still citizens themselves, in a case that determined that Wong Kim Ark, a man of Chinese descent, was illegally denied re-entry into the country.
“To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States,” reads the ruling in the 1898 case.
And in Plyler v. Doe, the U.S. Supreme Court further found that a parent’s undocumented status doesn’t negate the one requirement in the 14th Amendment for their child to gain citizenship upon birth: presence in the country.
Despite the history of legal interpretation backing the lawsuits against Trump’s executive order, it’s unclear where the U.S. Supreme Court might land. The court’s current makeup is the most conservative it’s been in decades, and the conservative supermajority has shown an eagerness to overturn precedent it disagrees with on ideological grounds.
Mayes said she’s optimistic that the justices will side with he Democratic-led states, pointing out that several on the bench are constructionists who prefer strict interpretations of the law.
“In our minds, this is not even close at all,” she said. “We obviously hope that if this makes it to the United State’s Supreme Court that the court will read the constitution.”
The battle over birthright citizenship comes on the heels of an election during which Arizona voters appeared to cast their ballots in favor of harsh immigration policies. Donald Trump, who vowed on the campaign trail to oversee a mass deportation effort and revoke birthright citizenship, won the state with 52% of the vote. And Proposition 314, the Secure the Border Act, which granted local police officers and state judges the ability to arrest and deport migrants, netted 62% of the vote.
But despite that, Mayes said her lawsuit doesn’t undermine what some political strategists might perceive as a mandate to greenlight Trump’s border hawk agenda. Trump’s promises to rollback birthright citizenship were too extreme, she said, and likely not what Arizona voters envisioned when they cast their ballots for him.
“I don’t think voters voted to undo birthright citizenship,” Mayes said. “This is a bizarre attempt to undermine 150 years of jurisprudence.”
Similarly, Trump’s plan to implement mass deportations across the country met with a swift dismissal from the Democrat, who added that she ran for office, in part, to oppose federal actions like Trump’s notorious 2018 Zero Tolerance Policy that led to nearly 3,000 children being separated from their parents and detention facilities for undocumented minors.
“I will not have any part of, and I will fight the attempt to set up what I believe are essentially concentration camps and family separation camps in Arizona,” Mayes said.
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