Federal district court judge temporarily blocks Trump's birthright citizenship order
S E E D E D C O N T E N T
/ Updated By Daniel Barnes
SEATTLE — A federal district court judge on Thursday temporarily blocked President Donald Trump's executive order aimed at limiting birthright citizenship — the first skirmish in what promises to be a protracted legal battle over the new administration's agenda.
Senior U.S. District Judge John C. Coughenour heard 25 minutes of arguments and then issued an order from the bench blocking the policy from taking effect for 14 days. There will be a further briefing on a preliminary injunction to permanently block the executive order while the case proceeds.
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"I've been on the bench for over four decades," Coughenour, a Ronald Reagan appointee, said. "I can't remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."
The case comes as four states (Washington, Arizona, Illinois and Oregon) sought to block the order before it is supposed to take effect in late February. It's one of five lawsuits filed by Democratic attorneys general and immigrant rights organizations challenging the order — which seeks to limit automatic birthright citizenship to children of U.S. citizens and green card holders — as unconstitutional.
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The Constitution's 14th Amendment has long been understood to grant automatic citizenship to anyone born on U.S. soil except the children of foreign diplomats. An answer to the U.S. Supreme Court's 1857 Dred Scott decision, which held that people descended from slaves were not citizens, the amendment begins with the sentence: "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 U.S. federal courthouse in Seattle.Chona Kasinger / Bloomberg via Getty Images file
"President Trump and the federal government now seek to impose a modern version of Dred Scott," lawyers representing the four states wrote in a court filing. "But nothing in the Constitution grants the President, federal agencies, or anyone else authority to impose conditions on the grant of citizenship to individuals born in the United States."
If implemented, Trump's order would cause the plaintiff states to lose federal funding that supports programs like Medicaid and the Children's Health Insurance Program (CHIP), the lawyers argue. In addition to the "substantial financial losses," the states would have to immediately bear the burden of modifying their administration of those programs to account for the change, the lawyers added.
"Absent a temporary restraining order, children born in the Plaintiff States will soon be rendered undocumented, subject to removal or detention, and many stateless," the lawyers continued. "They will be denied their right to travel freely and re-enter the United States. They will lose their ability to obtain a Social Security number (SSN) and work lawfully as they grow up. They will be denied their right to vote, serve on juries, and run for certain offices. And they will be placed into positions of instability and insecurity as part of a new, Presidentially-created underclass in the United States."
In their filings, Justice Department lawyers told Coughenour that the birthright citizenship order is an "integral part" of Trump's efforts to "address this nation's broken immigration system and the ongoing crisis at the southern border."
Not only does Trump have the authority to issue the order, they argue, but the states lack standing to sue based on their alleged economic harms.
"A third party, including a state, has no legally cognizable interest in the recognition of citizenship by the federal government of a particular individual — let alone economic benefits or burdens that are wholly collateral to citizenship status," Justice Department litigator Brad Rosenberg wrote.
While most of the Justice Department's filing focuses on technical arguments about why the states cannot sue, Rosenberg previews some of the arguments that could come into play as this and other cases move forward: how, in the Justice Department's view, courts have incorrectly interpreted the 14th Amendment for more than 100 years.
"Ample historical evidence shows that the children of non-resident aliens are subject to foreign powers — and, thus, are not subject to the jurisdiction of the United States and are not constitutionally entitled to birthright citizenship," Rosenberg wrote.
Ultimately, the case is likely to be appealed all the way to the U.S. Supreme Court. A Justice Department spokesperson said Thursday that it "will vigorously defend President Trump's EO, which correctly interprets the 14th Amendment of the U.S. Constitution. We look forward to presenting a full merits argument to the Court and to the American people."
Daniel Barnes
Daniel Barnes reports for NBC News, based in Washington.
Ken Dilanian contributed.
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That didn't take long. Not sure the Sharpie ink is even dry on that EO.
Yeah. Easiest holding ever.
In case you're one of those folks who thinks the phrase "subject to the jurisdiction" hasn't been thought through, it has. The case was US v Wong Kim Ark and it was decided in the 1890s.
Afterward (in the 1950s iirc), the holding in that case was codified into federal immigration law. So Trump's EO seeks to not only ignore the Constitution, he also seeks to overturn federal immigration code and the SCOTUS. That's kind of a lot.
The more I think about it, the more I warm to the idea of him focusing on stuff like birthright citizenship, annexing Greenland, and renaming the Gulf of Mexico.
It's kinda like giving your labrador puppy chew toys so he doesn't destroy the sofa.
I was thinking the same thing.
So here is the fun party game.... What windmills can we convince him to joust after these?
Stealing one from Berkely Breathed... we need an executive order mandating two spaces after periods.
an't remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."
That's all well and good, but if 5 justices are living constitutionalists, than nothing really matters but what they think is good policy.
Or Trump might, like Biden, decide he can amend the constitution by tweet.
It's settled law and no question about it, fixed in Stone.
: Jane Roe
If he wants to change the 14th Amendment he has to know or he's gonna find out that it literally takes an act of Congress. And then it has to be ratified by 2/3 of the states.
Whew! My US citizenship is safe, at least for now
Trump doesn’t even have the authority to make rules on citizenship. That is explicitly a Congressional power.
"Ultimately, the case is likely to be appealed all the way to the U.S. Supreme Court."
Which is the whole point of the EO.
How about having a PotUS who actually: "... will to the best of my Ability, preserve, protect and defend the Constitution of the United States" rather than try to violate it on the day he is inaugurated?