Almost immediately after Trump signed an executive order affirming that the 14th Amendment does not guarantee birthright citizenship, legal challenges began, and by Thursday morning, a federal district court judge in Seattle wasted no time in weighing in, hearing arguments on the measure and swiftly issuing a ruling to temporarily block its enforcement.
The decision sets the stage for a contentious legal battle over the scope and interpretation of the Constitution’s citizenship clause, which will ultimately go before the Supreme Court to settle.
Senior U.S. District Judge John Coughenour on Thursday was blistering in his criticism of Trump’s action as he granted a temporary restraining order that blocks Trump’s executive order from taking effect nationwide.
“I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order,” Coughenour, an appointee of Ronald Reagan, said from the bench. “There are other times in world history where we look back and people of goodwill can say where were the judges, where were the lawyers?”
Coughenour interrupted before Brett Shumate, a Justice Department attorney could even complete his first sentence.
“In your opinion Is this executive order constitutional?” he asked.
Shumate said “it absolutely is.”
“Frankly I have difficulty understanding how a member of the Bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”
The executive order will remain blocked for at least 14 days while lawsuits in Washington and elsewhere over Trump’s action proceed.
It’s easy for this latest display of judicial activism to be disheartening, but I remain confident that these challenges are destined to fail. The argument that the 14th Amendment automatically grants citizenship to anyone born on U.S. soil — regardless of their parents’ immigration status, whether they are here on a tourist visa, another temporary visa, or even illegally — is fundamentally wrong.
The Constitution recognizes birthright citizenship only under specific conditions, textualist and originalist interpretations of the 14th Amendment’s Citizenship Clause challenge the notion that it applies universally to anyone born on U.S. soil, regardless of their parents’ immigration status. The amendment was crafted in the aftermath of the Civil War and gave former slaves the rights and liberties of U.S. citizens.
Trump addressed this in his executive order by stating that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”
The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.
Let's hope this gets fast-tracked to the Supreme Court.
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