For the first time, an appellate court has reviewed the legality of Trump's executive order on birthright citizenship. This order's fate may ultimately be resolved by the U.S. Supreme Court. Judges in Maryland, Massachusetts, and New Hampshire have similarly blocked the order, and appeals are already underway in two of these cases.
Signed on January 20, Trump's order instructed U.S. agencies to deny citizenship to children born in the United States after that date if neither parent is a U.S. citizen or lawful permanent resident. This policy was immediately challenged as unconstitutional.
The U.S. Justice Department requested that the 9th Circuit stay a ruling by U.S. District Judge John Coughenour of Seattle, who declared the policy unconstitutional. The Department argued that Coughenour's nationwide injunction, requested by four Democratic-led states, was excessive. However, a three-judge panel declined the stay and scheduled arguments for June.
U.S. Circuit Judge Danielle Forrest, appointed by Trump during his first term, emphasized that a rapid ruling could undermine public trust in the judiciary, which must remain impartial. Forrest noted that the exception to birthright citizenship proposed by the government has never been judicially recognized.
The panel also included U.S. Circuit Judge William Canby, an appointee of former Democratic President Jimmy Carter, and U.S. Circuit Judge Milan Smith, appointed by former Republican President George W. Bush.
The White House and the Justice Department have not commented on the ruling. Meanwhile, Democratic state attorneys general, immigrant rights advocates, and others have filed lawsuits claiming that Trump's order violates the citizenship clause of the U.S. Constitution's 14th Amendment. This Amendment has been understood to guarantee citizenship to virtually anyone born in the United States.
The U.S. Supreme Court's 1898 ruling in United States v. Wong Kim Ark affirmed the 14th Amendment's guarantee of birthright citizenship, regardless of a child's parents' immigration status.
Judge Coughenour, appointed by former Republican President Ronald Reagan, was the first to block Trump's order, issuing a temporary restraining order on January 23, later extended to an indefinite preliminary injunction. This decision came in response to a lawsuit filed by the Democratic-led states of Washington, Arizona, Illinois, and Oregon, along with several pregnant women. Coughenour has labeled Trump's order as blatantly unconstitutional.
During a February 6 hearing, Coughenour remarked that the administration sought to strip children born on U.S. soil of their fundamental right to citizenship, effectively amending the Constitution via executive order.
If upheld, Trump's order could deny citizenship to over 150,000 children born annually in the United States, according to state attorneys general.
Reporting by Nate Raymond in Boston; Editing by Christopher Cushing and Stephen Coates
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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.
