Birthright Citizenship

In this episode of Pantsuits & Lawsuits, we dive into the fight against the Trump Administration’s executive order attempting to redefine birthright citizenship. Arizona Attorney General Kris Mayes is joined by two powerhouse advocates—Susan Reed, co-founder of the Michigan Immigrant Rights Center, and Reyna Montoya, founder of Aliento Education Fund. Together, they break down the constitutional, legal, and human impact of this unprecedented attack on the Fourteenth Amendment.

How would this EO affect thousands of newborns each year? What are the economic consequences for states like Michigan and Arizona? And most importantly—what can we do to fight back? Tune in for an urgent conversation on immigrant rights, legal challenges, and the power of advocacy.

Transcript

EPISODE 3 _ Birthright Citizenship
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AG Kris Mayes: [00:00:00] Hello and welcome back to Pantsuits and Lawsuits. Your favorite place to hear about the latest happenings in American law and litigation. I'm Arizona Attorney General Kris Mayes. 

AG Dana Nessel: And I'm Michigan Attorney General Dana Nessel. And we're happy to have you with us today for our deep dive into the historic legal battles taking place, unfortunately in our own time. 

AG Kris Mayes: So you might've heard about a number of legally and ethically tenuous executive orders being put out by the White House since January 20th. Today we wanna talk about one of the first and one of the worst, President Trump's attempt to redefine birthright citizenship.

AG Dana Nessel: As a refresher, within [00:01:00] hours of retaking office, Trump signed executive order 1 4 1 6 0, which I, I didn't even know that he had them numerically listed. Uh, I didn't either. 

AG Kris Mayes: Interesting. Yeah, I 

AG Dana Nessel: know. Uh, this was titled. Protecting the meaning and value of American citizenship ironically, which, uh, we know is in clear violation of the 14th Amendment.

AG Dana Nessel: And it's really an attempt to strip birthright citizenship from infants that are born to non-citizen parents here in the United States. So this executive order runs contrary to well over a century of settled law here in the United States, uh, as well as two Supreme Court decisions, and the black and white Constitution itself.

AG Dana Nessel: It's really an egregious case of revisionist history because before we had the 14th Amendment, the Constitution didn't define citizenship, and most judges relied on the British common law tradition of "jus soli", meaning [00:02:00] anyone born within the territorial limits of a nation was subject to the laws of that nation.

AG Kris Mayes: In the lead up to the Civil War, the Supreme Court threw a curve ball into the mix with () in our complaint, we call it) their "notorious pronouncement in Dred Scott v. Sanford", denying citizenship to the descendants of slaves. Obviously a horrific decision. 

AG Dana Nessel: And definitively overruled by the introduction of the 14th Amendment's citizenship clause.

AG Dana Nessel: So fast forward to 1898, the Supreme Court forcefully rejected, uh, challenges to the citizenship of a man who had been born in San Francisco to parents who were Chinese nationals. And when this individual, uh, returned back to the United States after a short visit abroad, he was detained, despite having made previous similar trips without any issue.

AG Kris Mayes: Ark brought his case before the Supreme Court and they [00:03:00] could not have been clearer in their decision under the citizenship clause, Wong Kim Ark and others like him born to foreign nationals are indisputably considered, quote, subject to the jurisdiction end quote of the United States upon birth and thus they are granted automatic citizenship.

AG Dana Nessel: So Trump's executive order plainly spits in the face of our nation's history. And it's not legal, it's not Constitutional. So, uh, we did what we do best. We sued. 

AG Kris Mayes: Yeah, and things are looking hopeful. Dana, as you know, um, my office, Arizona and, uh, Oregon, the state of [00:04:00] Washington, filed a lawsuit in, uh, the District of Washington.

AG Kris Mayes: That case was, uh, successful. We, we sought a TRO against the, uh, president's Executive Order. And I know you, uh, also filed, uh, a lawsuit in, in a, in a different location. If you wanna talk about that. 

AG Dana Nessel: So our, uh, lawsuit was in the, on the East coast. Uh, and I think that was in, um, Massachusetts, that we filed that case with one of our colleagues, uh, Andrea Campbell leading that.

AG Dana Nessel: So our group of ags, we secured a, a nationwide preliminary injunction. And of course, I know that, um, that your case right out of the gate, uh, secured a, uh, a temporary restraining order. Which, those are similar but different things. But the, the end effect is the same and it ultimately culminated in a national injunction, meaning there is no state anywhere in the country where there's a ban on birthright citizenship at this point, even though that that [00:05:00] case is gonna have to move forward in all these different areas and be further litigated.

AG Kris Mayes: It was, it was really striking to me that both of our cases, uh, obviously were successful. We thought they were gonna be successful, but for now, it's looking good. It's looking like we're gonna be hopefully be able to preserve birthright citizenship in the United States. 

AG Dana Nessel: Yeah. And that judge did not mince any words?

AG Dana Nessel: No, there was no having to read between the lines on that one. I think, if I'm not wrong, he said that it was the, the most flagrant violation, uh, of the Constitution he'd ever seen in his over 40 years on the bench. 

AG Kris Mayes: That is a long time. Yes, exactly. 

AG Dana Nessel: So now we wanna, you know, take this time to demonstrate the real stakes, uh, of this very dangerous executive order and what it would mean for the real life people of our states, Michigan, Arizona, and of course nationwide.[00:06:00] 

AG Kris Mayes: Today we are thrilled to have two incredible guests with us. Susan Reed, co-founder of the Michigan Immigrant Rights Center and Reyna Montoya, the founder of Aliento Education Fund. Both of them have been on the front lines of advocating for immigrant rights and fighting policies that threaten our communities.

AG Dana Nessel: Absolutely, and we're excited here to dive right into a pressing issue that's been making waves, and that's the executive order aiming to redefine birthrights citizenship. Now, this is a concept that's been settled law for over 150 years, so I think it's really critical that we understand the implications both legally and professionally for our immigrant communities.

AG Dana Nessel: So Susan and Reyna, thank you so much for joining us today. 

Susan Reed: Thank you so much. It's a pleasure. 

Reyna Montoya: Thank you so much for having us. 

AG Kris Mayes: We are so excited to hear from, uh, you, and we're also going to be digging into the legal challenges ahead and what people can do to get involved. [00:07:00] So let's go ahead and get started.

AG Kris Mayes: This executive order attempts to essentially redefine birthright citizenship. Can you explain why the 14th Amendment is so critical to our understanding of United States citizenship?

Reyna Montoya: I can go ahead and get started. I was born in Mexico. I am not a citizen of the United States. I'm protected by the DACA program, but we have so many mixed immigration status families in the state of Arizona.

Reyna Montoya: We're talking about whining nine students that are part of a mixed immigration status families. Nationwide, we're talking about 22 million people that live in a mixed immigration status family. If you've never heard that term, it's more like maybe someone is a citizen and the other person, uh, as in temporary status or the other person is a citizen.

Reyna Montoya: Something that I think that is really critical for us to understand as people that love America, that love the United States, is that who is the country [00:08:00] that we wanna be? This is not only goes against precedent, but from a moral clarity we do have in this glove. Countries like Myanmar who have a stateless population, and do we wanna be one of those countries that violates the human rights of people, like the right to an education?

Reyna Montoya: And when it comes to citizenship, those are a couple of things that are really critical that we have little children growing up in the United States, that we don't want them to not go to school. We don't want them to continue to pursue basic needs like healthcare that can really allow them not only to integrate into society, but to thrive as adults in the future. 

AG Dana Nessel: Can I ask you, Reyna, I I wanna ask you sort of a personal question, if you don't mind. Being a DACA recipient and seeing how, you know, just the back and forth lobbying from administration to administration, how do you live your daily life? Like, what is it like for you? 

Reyna Montoya: It's definitely really disheartening because of basic, basic things that I do in [00:09:00] the morning.

Reyna Montoya: I wake up and the first thing that I do is look at my notification because I know that potentially news can come in, especially on Fridays or on the weekend. We have seen that that's when executive orders get, uh, get announced. That's the level of anxiety that I don't wish it to anybody. You can potentially be sent back to a place that you don't even know.

Reyna Montoya: I mean, I was a child when I came here and going back to a place that doesn't feel like home, that I don't really know many people there. And also that I have a personal historic trauma with the place. I'm proud in one hand of being bilingual bicultural, knowing Spanish, and embracing that side of my culture.

Reyna Montoya: However, on the other side, the reason why we left, uh, Mexico was because my dad was kidnapped by Mexican police. Then he didn't receive justice. For me, it comes down to not having permanency in this country and that it can be stripped away at any time. Brings a lot of anxiety and fear. 

AG Dana Nessel: Mm. [00:10:00] Thanks for answering that.

AG Dana Nessel: I just - when you, when you mentioned that, I just thought it's just gotta be day-to-day life has gotta be so difficult under those circumstances. 

AG Kris Mayes: Yeah. And I appreciate you sharing that, Reyna, and that's certainly true of so many, uh, Arizonans, you know, we have, I believe, more than 30,000 DACA recipients, uh, or Dreamers in, in Arizona.

AG Kris Mayes: And I think it's, that's why it's something that I've always said will be a bright line for me with regard to what is, uh, being proposed by the Trump administration. We are going to protect our dreamers and our DACA recipients. Susan, why don't we go to you Like, can you also talk about how this executive order directly affects Michigan's immigrant communities and the legal challenges ahead for folks there?

Susan Reed: Absolutely. You know, I mean, Reyna has shared something so profoundly personal. Being a stateless person represents a profound denial of legal and human rights. It's [00:11:00] really a nightmare and a tragedy in any person's life because no system or benefit or program is set up to understand your situation. And, um, people born and subject to this would potentially be stateless persons.

Susan Reed: So the executive order just represents a profoundly dishonest attempt to muddle one of the clearest principles in our Constitution for the exact reason that the protection was written in the first place during reconstruction, and in 1898, the Supreme Court made that really clear in the Wong Kim Ark case when Chinese immigrants were so disfavored as just one example for Michigan, we have farm worker families that travel every year from Texas and Florida at great risk and cost to themselves, for low wages to hand harvest the fruit and vegetable crops that sustain us all. I know so many beautiful multi-generational families of settled out farm workers. That's kind of the term for folks who stay and stay here to raise families and pursue [00:12:00] education and hard work. So many of my friends have undocumented parents who were migrant and seasonal farm workers.

Susan Reed: What an absolute insult to these West Michigan friends of mine to even suggest that their story is not an American story. Immigration law is so complex and even determining someone's status or whether they derived or acquired U.S. Citizenship abroad can take months or years, and that's especially true in a northern border state where for so many years, US and Canadian communities, and I'm sure you experienced this in Arizona as well, but people don't think about it with the Canadian border, for so many years, there was such free movement of people in both directions, um, both in Detroit and in smaller metropolitan areas in Michigan. I meet undocumented Canadians fairly regularly, and even they often don't understand the full significance of their situation. Um, so there are just so many ways that this would play out that people are not understanding or anticipating that it could affect them and their own families.

AG Dana Nessel: I will just say this on a personal note. You know, my, my [00:13:00] father has birthright citizenship and his mother was undocumented, snuck in through Canada after, um, world War II, uh, or during it, I should say. And, um, I look at the legacy of immigration and just my own family. You know, him on my, on my dad's side, my paternal grandparents, both of them birthright citizens and, you know, just a few generations later, all of the grandchildren, our college graduates and our doctors, and served in the military or lawyers, one of them is the top law enforcement official in the, a state of over 10 million people.

AG Dana Nessel: That is the, the story of immigration, right? You know, is that, um, every generation wants the next generation to do better than they did. Uh, and I just, I just can't even imagine the concept of eliminating birthright citizenship, not just because it's part of the Constitution and how difficult that would be, but because ethically, morally, and, and as a tradition, this is who we are as a country, and it's one of the things that makes the [00:14:00] United States as great as it is, but, let me ask a question directly about some other factors and, and that's the economic costs of restricting birthright citizenship because it's staggering, right? It affects Medicaid, schools, hospitals, foster care, and I guess, uh, I'll ask this to you, Reyna: what are some of the long-term consequences if this executive order were to take effect?

Reyna Montoya: There's so many long-term consequences. The immigration system, it's so outdated that it takes years for a case to resolve. My dad was in deportation proceedings from 2012 to 2018, and he barely got his green card last year. So we're talking at about a very long period of time that it doesn't work, that it's not practical, that it doesn't work for the US economy, doesn't work for families in Arizona, in Michigan, or across our states and that it's gonna have ramifications. Because if you are undocumented in the state of Arizona, you do not qualify for public benefits. So that's [00:15:00] something that I think it's really clear that it has a tangible ramification on people's lives. And then I think that it, it raises the question, if this is gonna go in violation of, of some other laws that the federal government around emergency care, are we gonna be denying pregnant women before they go into labor, uh, unless we're able to check their immigration status. So that's not a nation that I wanna be part of. I wanna be, make it better. And I think that that's the questions that Americans should be asking themselves today. 

AG Kris Mayes: In terms of the practical implications and the cost to the states that Dana and I and the other ags that filed suit against, uh, this Trump executive order.

AG Kris Mayes: In fact, I will note that the Reagan appointed judge. In our case took 25 minutes to rule that birthright citizenship is Constitutional, under the 14th amendment section 1. 25 minutes, and said [00:16:00] that the Trump executive order was blatantly unconstitutional. And I think one of the arguments that the states were making were were, you know, they're gonna have huge costs - hundreds of millions of costs to Arizona if all of a sudden, um, children who otherwise would've been citizens aren't citizens. And, and we have to now pick up the cost for services that the feds, the federal government would've paid. And then think about all the practical implications of this. You know, you think about all of the in incredibly insane, uh, implications of this, but Susan, what, what are you thinking in Michigan?

Susan Reed: I mean, absolutely from a state thrift perspective, um, you know, I obtained the figure that the number of births for which parents in Michigan identified a foreign place of birth, but did not provide a social security number on the birth certificate worksheet was about, uh, 6,600 births the last two years.

Susan Reed: Those are all kids who won't qualify for [00:17:00] Medicaid anymore, um, who won't be eligible for other federal public benefits and programs who long-term won't be able to get federal, uh, education assistance. All those pieces, I mean, those costs just start running hard when it comes to foster care reimbursement.

Susan Reed: When it comes to, um, school reimbursement, uh, it's tremendous. But as you lift it up, AG Mays - right now the whole system is inverted. States and localities tell the federal government who a US citizen is by issuing a birth certificate. This order it's ill-conceived not only because it so clearly contravenes the Constitution, but it's also ill-conceived because it really doesn't do anything to think about who would then generate the proof sufficient to obtain a US passport or other proof of US citizenship.

Susan Reed: How would all the rest of us who don't actually walk around every day carrying proof of citizenship, uh, get through our daily lives?

AG Kris Mayes: And I wanna say also, you know, I recently was [00:18:00] speaking with a group of firefighters mm-hmm. Who were dealing with the real world implications of this whole situation. And they said they, they have a, a dreamer amongst them. Uh, I have a dreamer who is a key part of my staff. I think that it, it is a, a, an incredibly important point for both of our states, which is : immigrants are a part of the fabric of our society. They're making our states better and to rip them away would, would harm our states so much.

Reyna Montoya: Yeah, I mean, like federally, like in state taxes we contribute a hundred billion dollars. Undocumented people contribute a hundred billion dollars with a big "B". Uh, that I think that is really critical to mention. Uh, here in Arizona, uh, you stated there's about approximately 25,000, uh, folks currently on the protected under the DACA program and within that, I think oftentimes we think about the people like me who are gonna be directly impacted, but we don't think about our offices, [00:19:00] our government, our our schools.

Reyna Montoya: There's nationwide, there's over 20,000 DACA teachers. We are so interconnected. To, to understand that, uh, that is, this is gonna impact not only undocumented folks and dreamers, it's gonna impact as citizens that are depending, uh, on us, that they have built relationships and they're depending on, depending for us to show up in the workforce as well.

AG Dana Nessel: So I, I have this question, uh, sort of wrap things up a little bit and, um, you know, that's, there's so much misinformation out there and, and, and more than anything, just so awful, the demonization, uh, of, of immigrants and immigrant communities. What I'd like to know is understanding the falsehoods that are out there, uh, and understanding all of the misinformation, again, about criminal activity of undocumented people, understanding that the percentage of individuals, you know, who are engaged in criminal activity - [00:20:00] far lower for, uh, those who are undocumented than for American citizens. It's just a fact. What do we do? AG Mayes and I we're filing lawsuits on a daily basis, literally, against the federal government, and right now trying to push back against these illegal, unconstitutional efforts against immigrant communities and many other communities as well, but:

AG Dana Nessel: what do we recommend that that regular people do to push back on this very false and dangerous narrative about immigrant communities? 

Susan Reed: I'll, I'll pick up from there. You know, I became an immigrant rights attorney and founded an immigrant rights nonprofit because I grew up in a deeply Catholic family in the Catholic school system in the eighties and nineties when I was interested in social justice and choosing a career path.

Susan Reed: Even very, very conservative people in that community understood that solidarity with new immigrants and helping new [00:21:00] immigrants, um, you know, comply with the law and, um, move forward in a very broken immigration system was, was a good thing to do. Right? And, and really that has shifted so much in so many places.

Susan Reed: But you do see Michigan's Catholic bishops affirming the dignity of all families. All 10 bishops signed a letter. Um, look at your own faith community. Look at the ways in which your own faith community is standing up for immigrants and let those faith leaders know they're doing the right thing. I'm more of a human rights advocate, right?

Susan Reed: And so I do wanna lift up that while it's clearly incredibly costly to states, one of the most disingenuous things that anti-immigrant actors do is try to suggest that americans who have undocumented parents represent a cost to the state simply for living or simply for existing, right? And so when you see these statistics alleging that undocumented immigrants create these giant costs, and then you hear someone like Reyna [00:22:00] explaining that, "no undocumented folks don't even qualify for public benefits"... to treat the existence of these Americans as some kind of burden when we just know from, from a state perspective, that's not true. We need Michiganders, um, is frustrating both on a fiscal and a human rights, uh, point of view. Do everything you can to affirm the humanity of immigrants, regardless of status at every opportunity.

Susan Reed: Um, there's so much going on right now in our state. The refugee resettlement collaboratives around the state are scrambling to replace the state department's suspended small initial welcome grants and services. Reach out, figure out who your local collaborative is. There's one for every part of the state, and help you will meet the best people and find out who does the best work, um, in your local community, supporting immigrants.

Susan Reed: Um, find out who in your state does legal services and state level policy. I'll just give you a hint. It, it, it is MIRC in the state of Michigan, the Michigan Immigrant Rights Center. But get [00:23:00] on their lists, get on their socials, support them. Really try to find out who you can connect with to get the, the latest information about how you can, can stand up and support immigrants in your community.

AG Dana Nessel: Reyna?

Reyna Montoya: I think for me, at the end of the day when I don't know what to do, when I feel maybe incompetent at a subject matter that maybe some listeners would be like, "I wanna support immigrants, but that's not my area of expertise." I always think about humility as a core value. And every time that I'm in front of people, I always tell them, you don't have to be an expert, you just have to show that you care. And that's the first step. That's the first step about really building of becoming an ally to, to all immigrants, to all people we're living in very difficult and challenging times that it's easier to shut the door at your neighbor, rather than asking, how are you feeling?

Reyna Montoya: What are your fears? What are your hopes and what are your dreams? So I tell folks that we can't forget that human [00:24:00] elements when we're talking about immigration, when we're talking about what's going on in our nation, we're talking about human beings. Data after data shows that, that American people do believe in in having immigration as a cornerstone of our nation, but those places are silent. So we need to be a little louder and being able to figure out different channels that we can communicate our support for immigrants. 

AG Kris Mayes: We appreciate you both so very much, Reyna and Susan, and this has been a fascinating conversation. Dana and I will continue to, as she said, file lawsuits every time the current president violates our Constitution or our laws and we, we really feel strongly that standing up for the 14th Amendment and birthright citizenship, it was and will continue to be the right thing to do.

AG Kris Mayes: And we intend to win that lawsuit. But you both, uh, have taught us this battle is, um, not just in the courts, but it's, you know, a battle to help our communities, [00:25:00] to educate everybody about how important dreamers and immigrants are to our communities and our states. Again, these are our firefighters, they're our teachers. They are our police officers. They are in state government and um, we need them as a country. We need all, all of us working together. 

Susan Reed: Well, we appreciate your leadership so much. 

AG Kris Mayes: Thank you.

AG Dana Nessel: That's all we have time for this week on Pantsuits and Lawsuits. Remember to subscribe and follow us on social media for more interesting and informative conversations like the one we had today. 

AG Kris Mayes: If you're ever curious, all of these filings are publicly available and linked to the announcements on our websites.

AG Kris Mayes: Please feel free to browse around for a more detailed explanation of this case and others, or you can just wait for us to break it all down on this very [00:26:00] podcast. 

AG Dana Nessel: Check back in the next episode to hear more about the most pressing and impactful issues affecting life all across our nation from Michigan to Arizona and beyond. 

AG Kris Mayes: See you later.