Wed. Jan 22nd, 2025

Attorney General Aaron Ford flanked by General Counsel Leslie Nino Piro (left) and Solicitor General Heidi Parry Stern (right) at a news conference Tuesday on Trump’s executive order eliminating birthright citizenship. (Photo by Dana Gentry/Nevada Current)

Nevada Attorney General Aaron Ford joined Attorneys General from 17 other states in a federal lawsuit filed Tuesday challenging President Donald Trump’s executive order to end birthright citizenship, which they say violates the 14th Amendment to the U.S. Constitution, enacted in 1868. Attorney Generals from five additional states filed a separate suit Tuesday.

Trump’s order, signed hours after he vowed in his oath of office to uphold the Constitution, directs the federal government to cease recognition of automatic birthright citizenship for children born in the United States. 

The AGs are seeking to invalidate the order and enjoin any efforts to implement it. 

The 14th Amendment to the U.S. Constitution guarantees citizenship to every child born in America, regardless of their parents’ immigration status. Critics contend the right is a motivating force for undocumented individuals to migrate to the U.S. and is a drain on social services. 

Ford, a Democrat, at a news conference Tuesday in Las Vegas noted that he acknowledged in November Trump’s right to implement his immigration policies. 

“But I also noted that should the day ever come and should the need arise, my office would be what I call a bulwark against any efforts to impose unconstitutional mandates, override our system of checks and balances or intrude upon the rights of any Nevada resident,” Ford said. 

“That day has come and the need has arisen.”

The 14th Amendment is rooted “in the darkest chapter of American history” Ford recalled, and he invoked the U.S. Supreme Court’s 1857 ruling in the Dred Scott v. Sandford case that “Black people, whether enslaved or free, could never be citizens of the United States. In fact, our Supreme Court declared that black people had, and I quote, ‘no rights which the white man was bound to respect.’” 

The 14th Amendment was adopted in 1868 during the Reconstruction effort to safeguard rights of the formerly enslaved. One of four key sections of the 14th Amendment, birthright citizenship was included to overturn Dred Scott and assure citizenship for Black people, including those formerly enslaved. 

“It’s not lost on me that Mr. Trump issued this decision on Martin Luther King Jr. Day. It’s not lost on me that on the same day of his inauguration, one of his closest allies did a Hitler salute,” Ford said of Elon Musk, whose gesture of thanks to supporters is being compared by some to the infamous Sieg Heil salute of Nazi Germany. “These are things that should not be taken in isolation but viewed in the context of where we are today.” 

“Only Congress can change it. It can’t be done by executive order,” Las Vegas immigration attorney Juan De Pedro said of the 14th Amendment. “But I think the Trump administration understands that, and they’re looking for access to the court system.” 

The birthright citizenship clause of the 14th Amendment states “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.”

The Trump administration’s legal argument appears to pivot on the phrase “subject to the jurisdiction thereof” suggests De Pedro. “Trump’s legal team is trying to say if someone who’s born here to parents who aren’t permanent residents or U.S. citizens, they’re not ‘subject to the jurisdiction thereof.’” 

Trump’s border czar Tom Homan told CNN last month he does not think the 14th Amendment grants birthright citizenship. “I think that’s up to the courts, I think it needs to be held by the Supreme Court.”

The Supreme Court upheld the law in the 1898 case United States v. Wong Kim Ark. The Court determined that a man born in San Francisco to Chinese parents was entitled to U.S. citizenship. 

“The Constitution is clear: if you are born in the United States, you are an American citizen,” said Nevada Democratic Sen. Jacky Rosen in a statement Monday. “Donald Trump’s attempt to take Americans’ birthright citizenship away is extreme, unconstitutional, and illegal. I will do everything in my power to protect Nevadans’ Constitutional rights.”

“President Trump can’t simply rewrite our Constitution,” Sen. Catherine Cortez Masto wrote on social media Monday evening. “If you are born in this country, you’re a citizen.”

Rep. Mark Amodei, the only Republican in the Nevada delegation, did not respond to requests for comment. 

In 1990, about 15% of children in Nevada were from immigrant families, according to the Migration Policy Institute. In 2023, more than a third of the state’s children (35%) were from immigrant families.

Repealing the amendment would require Congress to pass a new amendment with a two-thirds majority in both houses.  It would then have to be ratified by three-fourths of the states. 

The amendment could also be repealed via a constitutional convention. 

Trump’s executive order, Ford says, would prevent native-born children from obtaining a Social Security number “and, as they age, to work lawfully. They will have no right to vote, serve on juries, and run for certain offices. And they may be rendered stateless, without a clear claim to citizenship in any country.”

De Pedro agrees the order could “create a class of stateless children. People who are recent arrivals from countries like Venezuela who give birth to a child here” wouldn’t  be guaranteed citizenship for their child from their country of origin, “especially if their parents are requesting asylum in this country.” 

The executive order “harms Nevada itself,” Ford said, adding the state would lose federal benefits for foster care, adoption assistance, and the Children’s Health Insurance Program (CHIP), “which all turn at least in part on the immigration status of the resident being served.”

Gov. Joe Lombardo, a Republican who endorsed Trump and who Ford intends to challenge in 2026, did not respond to requests for comment on whether he supports Trump’s executive order.