Trump Orders an End to “Birthright Citizenship.” A Federal Judge calls the Order “Blatantly Unconstitutional.”

It didn’t take long for U.S. District Court Judges to start blocking President Trump’s efforts, just as they did repeatedly during his first term. Already, a U.S. judge has blocked President Donald Trump’s order limiting birthright citizenship.

U.S. District Judge John Coughenour in Seattle ordered the the Trump administration not to enforce Mr. Trump’s order, discussed below, that would have denied birthright citizenship to babies born of parents illegally in the United States.

“This is blatantly unconstitutional order,” Coughenour said during the court hearing, without even allowing the government lawyer to finish his argument.

The ruling was made in a case brought by the attorneys general of Arizona, Illinois, Oregon, and Washington state. It was one of several lawsuits filed almost instantly against Mr. Trump’s Executive Order. Judge Coughenour’s Temporary Restraining Order remains in effect for only 14 days, but before it expires a hearing will be held on February 6th to determine whether to continue the stay in effect. Given the judge’s outbreak that Trump’s action was “blatantly unconstitutional,” which was made without even allowing the government lawyer to make his case for its constitutionality, it is a fairly good bet that he’ll extend the stay.

UPDATE: Judge Coughenour made his Order permanent two weeks later, indefinitely blocking President Trump’s efforts to end birthright citizenship for children born to parents without legal immigration status. The new nationwide Preliminary Injunction is expected to remain in effect until the case is concluded, unless an appeal to a higher court results in the injunction being overturned.

It is anticipated that the Department of Justice will use this judge’s order to move the case up, through the appellate structure, to the Supreme Court. It was never expected that the Executive Order would go unchallenged, and eventually this is a matter to be ruled upon by the Supreme Court. The Executive Order was only the vehicle by which the issue would reach the Supreme Court.

Original Story

Literally hours, not even a day, after President Trump issued an Executive Order ending “Birthright Citizenship,” a coalition of 18 states (all led by Democrat Attorneys General), and joined by two cities (also led by Democrat politicians), filed a lawsuit to oppose Trump.

Those states and cities joining together to block Trump’s efforts to end Birthright citizenship are California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Rhode Island, Vermont and Wisconsin, and the cities of Washington, D.C. and San Francisco, California. In a 50-page Complaint, they claim to be bringing “this action to protect their states, localities, and residents from the President’s flagrantly unlawful attempt to strip hundreds of thousands [of] American-born children of their citizenship based on their parentage.” They decry Trump’s effort “to abrogate this well-established and longstanding Constitutional principle by executive fiat.”

See the Complaint for Declaratory and Injunctive Relief.

The Executive Order, which by its terms goes into effect thirty days after it was signed, states that children born here to women who are (1) unlawfully present in the United States or (2) temporarily authorized to be here, such as under a tourist visa or a student visa, and (in both cases) whose father was not a United States citizen, do not automatically receive U.S. Citizenship by virtue of being born on our soil. In signing the Executive Order, Mr. Trump stated that the United States was the only country in the world to award citizenship to anyone who happens to be born within its borders.

The Executive Order is based on Mr. Trump’s interpretation of the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment was passed after the Civil War, and its Citizenship Clause was written to assure that full citizenship extended to the newly freed Black population.

The citizenship clause in the 14th Amendment reads, “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 interpretation of exactly what this means turns on the interpretation of the subordinate clause “and subject to the jurisdiction thereof.” What this means is not undefined, and is not a case of “first impression.” but though these words have been interpreted in the past, there is no new jurisprudence on this subject. AmericanVantagePoint.com discussed this issue in greater depth in our posting, “Does the Constitution Require “Birthright Citizenship”?”

Mr. Trump’s Executive Order defines which persons are “not subject to the jurisdiction” of the United States, for the purpose of determining citizenship upon birth, to include the following:

“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Read the full Executive Order on Birthright Citizenship.