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SEATTLE (AP) – A federal judge on Thursday temporarily blocked President Donald Trump’s executive order denying U.S. citizenship to children of parents living in the country illegally, calling it “manifestly unconstitutional” during the first hearing in a multi-state effort that challenged the order.
The 14th Amendment to the Constitution promises citizenship to those born on American soil, a measure ratified in 1868 to secure citizenship for former slaves after the Civil War. But in an effort to curb illegal immigration, Trump issued the executive order just after being sworn in for his second term on Monday.
The order would deny citizenship to those born after February 19 whose parents are in the country illegally. It also prohibits US agencies from issuing any document or accepting a government document recognizing citizenship for such children.
Trump’s order prompted immediate legal challenges across the country, with at least five lawsuits filed by 22 states and a number of immigrant rights groups. A lawsuit filed by Washington, Arizona, Oregon and Illinois was the first to be heard.
“I’ve been on the bench for over four decades. I can’t remember another case where the question asked was as clear as this is,” U.S. District Judge John Coughenour told a lawyer for the Justice Department. “This is a patently unconstitutional order.”
Thursday’s decision prevents the Trump administration from taking steps to implement the executive order for 14 days. In the meantime, the parties will present additional arguments on the merits of Trump’s order. Coughenour scheduled a hearing on Feb. 6 to decide whether to block it longer term as the case progresses.
Coughenour, 84, a Ronald Reagan appointee who was nominated to the federal bench in 1981, grilled the DOJ attorney, Brett Shumate, asking whether Shumate personally thought the order was constitutional.
“I find it difficult to understand how a member of the Bar could state unequivocally that this is a constitutional order,” he added.
Shumate assured the judge that he did — “absolutely.” He said the arguments the Trump administration is making now have never been litigated before, and there was no reason to issue a 14-day temporary restraining order when it would expire before the executive order takes effect.
The Justice Department later said in a statement that it will “vigorously defend” the president’s executive order, which it said “correctly interprets the 14th Amendment to the United States Constitution.”
“We look forward to presenting a full case to the Court and the American people, who are desperate to see our nation’s laws enforced,” the department said.
The United States is among about 30 countries where birthright citizenship—the principle of jus soli, or “right to the land”—applies. Most are in America, and Canada and Mexico are among them.
The 14th Amendment was ratified in 1868, in the wake of the Civil War, to secure citizenship for former slaves and free African Americans. It states: “All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and of the state in which they reside.”
Trump’s order asserts that children of non-citizens are not “subject to the jurisdiction of the United States” and are therefore not entitled to citizenship.
Arguing for the states Thursday, Washington Assistant Attorney General Lane Polozola called it “absurd,” noting that neither those who immigrated illegally nor their children are immune from U.S. law.
“Aren’t they subject to the decisions of the immigration courts?” Polozola asked. “Aren’t they supposed to follow the law while they’re here?”
Polozola also said the restraining order was justified because, among other reasons, the executive order would immediately begin requiring states to spend millions revamping health and benefits systems to reconsider an applicant’s citizenship status.
“The order will affect hundreds of thousands of citizens across the country who will lose their citizenship under this new rule,” Polozola said. “Births cannot be paused while the court hears this case.”
Washington Attorney General Nick Brown subsequently told reporters that he was not surprised that Coughenour had little patience with the Justice Department’s position, given that the Citizenship Clause emerged from one of the darkest chapters of American law, the Supreme Court’s 1857 Dred Scott decision, which determined that African Americans, whether slave or free, had no right to citizenship.
“Babies are being born today, tomorrow, every day, all over this country, and so we had to act now,” Brown said. He added that it has been “the law of the land for generations that you are an American citizen if you are born on American soil, period.”
“Nothing that the president can do is going to change that,” he said.
A key case involving birthright citizenship occurred in 1898. The Supreme Court ruled that Wong Kim Ark, who was born in San Francisco to Chinese immigrants, was an American citizen because he was born in the country. After a trip abroad, he faced being denied re-entry by the federal government on the grounds that he was not a citizen under the Chinese Exclusion Act.
But some advocates of immigration restrictions have argued that the case clearly involved children born to parents who were both legal immigrants. They say it is less clear whether this applies to children born to parents who live in the country illegally.
Trump’s order prompted the attorneys general to share their personal connections to birthright citizenship. Connecticut Attorney General William Tong, for example, an American citizen by birth and the country’s first Chinese-American elected attorney general, said the trial was personal to him. Later Thursday, he said Coughenour made the right decision.
“There is no legitimate legal debate on this issue. But the fact that Trump is dead wrong will not stop him from inflicting serious harm on American families like my own right now,” Tong said this week.
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Catalini reported from Trenton, New Jersey. Associated Press reporter Alanna Durkin Richer in Washington, DC, contributed to this report.
