President Donald Trump holds up an executive order after signing it.Matt Rourke/AP
A federal judge in Washington state dealt the first blow to President Donald Trump’s aspirations of rewriting the Constitution and throwing away a century-old legal precedent in his quest to eliminate birthright citizenship.
On Thursday, Judge John C. Coughenour issued a four-page temporary restraining order blocking Trump’s day-one proclamation denying automatic citizenship to children born on US soil to immigrants without legal status or on temporary visas.
“I’ve been on the bench for four decades,” the Ronald Reagan-appointed Seattle judge said in a hearing about the case brought by the state attorney generals of Washington, Arizona, Illinois, and Oregon, “I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?”
The citizenship clause of the 14th Amendment establishes that “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.” Although conservative scholars have long tried to make the case that the children of undocumented immigrants should be excluded from this provision, centuries of tradition, constitutional interpretation, and Supreme Court precedent guarantee automatic citizenship to anyone born in the United States, regardless of their parents’ immigration status.
In their lawsuit filed in the US District Court for the Western District of Washington, the states note that in 2022 more than 150,000 babies were born to both undocumented parents in the United States. “The individuals who are stripped of their United States citizenship,” they argued, “will be rendered undocumented, subject to removal or detention, and many will be stateless—that is, citizens of no country at all.”
The Department of Justice opposed the state’s request for a temporary order arguing they lacked standing to sue the federal government on the issue. On the merits of the case, the government stated that Trump’s executive order is “entirely consistent with the 14th Amendment’s text and history” and that “birth in the United States does not by itself entitle a person to citizenship.”
The DOJ also pointed to language in the Civil Rights Act of 1866—which predated the ratification of the 14th Amendment—that excluded from citizenship those “subject to any foreign power, excluding Indians not taxed” to offer an alternative read of the citizenship clause of the Constitution.
The government attorneys further tried to question a Supreme Court landmark ruling in the lesser-known Wong Kim Ark case from 1898 reaffirming the 14th Amendment’s guarantee of birthright citizenship. As I’ve written before, the justices delivered a 6-2 opinion determining that Wong Kim Ark, the San Francisc0-born son of Chinese immigrants was indeed a US citizen, regardless of his parents’ ancestry. Opponents of birthright citizenship for the children of undocumented immigrants claim the Supreme Court decision was wrongfully decided and only directly applied to the children of immigrants with lawful status.
The Seattle federal judge’s decision is an indication of the steep climb Trump’s assault on birthright citizenship will face. Several lawsuits have already been filed by immigrant rights groups and on behalf of expecting immigrant parents. But the Trump administration and opponents of birthright citizenship were probably anticipating that would be the case and they might even have a plan to take this issue back to the highest court in the land.
“We appreciated and wanted the challenges to this,” said GOP Rep. Brian Babin of Texas who recently sponsored a bill to codify Trump’s birthright citizenship executive order. “So we can get it into the Supreme Court of the United States. This thing could take up to three years before it winds up on the high court and let’s see how they [rule].”