A federal court has temporarily blocked President Donald Trump’s executive order redefining birthright citizenship, calling it “blatantly unconstitutional”.
During the first multi-state challenge, US District Judge John Coughenour repeatedly interrupted a Justice Department lawyer during arguments over rights where anyone born on US soil is automatically granted citizenship, including children of undocumented migrants.
When attorney Brett Shumate said he’d like a chance to explain it in a full briefing, Coughenour told him it “boggles the mind”.
Coughenour added on Thursday: “This is a blatantly unconstitutional order.”
“We look back in history and say ‘where were the judges, where were the lawyers?’
“Frankly I have difficulty finding that a member of the bar can state confidently that this is a constitutional order.”
He blocked it from taking effect next month, issuing a two-week restraining order which means the case could eventually reach the Supreme Court.
“Obviously we will appeal it,” Trump told reporters in response, according to Agence France Presse.
The judge, a President Ronald Reagan appointee, said he’s been on the bench for more than four decades and he couldn’t remember seeing another case where the action so clearly violated the constitution.
The 14th Amendment, adopted in 1868 after the Civil War, 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.”
Shumate said he respectfully disagreed and asked the judge for an opportunity to have a full briefing on the merits of the case, rather than have a 14-day restraining order issued blocking its implementation.
The case is one of five lawsuits being brought by 22 states and a number of immigrant rights groups across the US.
A temporary restraining order sought by Arizona, Illinois, Oregon and Washington was the first to get a hearing before a judge and applies nationally.
Arguing for the states, Washington assistant attorney general Lane Polozola labelled as “absurd” the government’s argument that the children of parents living in the country illegally are not “subject to the jurisdiction” of the United States.
“Are they not subject to the decisions of the immigration courts?” he asked. “Must they not follow the law while they are here?”
He also said the restraining order was warranted because, among other reasons, the executive order would immediately start requiring the states to spend millions to revamp health care and benefits systems to reconsider an applicant’s citizenship status.
“The executive order will impact hundreds of thousands of citizens nationwide who will lose their citizenship under this new rule,” Polozola said. “Births cannot be paused while the court considers this case.”
The Trump administration has said that the order, signed by the president on Inauguration Day, would only affect those born after February 19 when it is due to take effect. Therefore, it argued, temporary relief isn’t called for.
Washington Attorney General Nick Brown told reporters afterward he was not surprised that Coughenour had little patience with the Justice Department’s position, considering that the Citizenship Clause arose from one of the darkest chapters of American law, the Supreme Court’s 1857 Dred Scott decision, which held that African Americans, whether enslaved or free, were not entitled to citizenship.
Brown said: “Babies are being born today, tomorrow, every day, all across this country, and so we had to act now.
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 will change that,” he said.
The US is among about 30 countries where birthright citizenship - the principle of jus soli or “right of the soil” - is applied. Most are in the Americas, and Canada and Mexico are among them.
Trump’s order asserts that the children of noncitizens are not subject to the jurisdiction of the United States, and orders federal agencies to not recognise citizenship for children who don’t have at least one parent who is a citizen.
One of the lawsuits aimed at blocking the executive order includes the case of a pregnant woman, identified as “Carmen,” who is not a citizen but has lived in the United States for more than 15 years and has a pending visa application that could lead to permanent residency status.
“Stripping children of the ‘priceless treasure’ of citizenship is a grave injury,” the suit says. “It denies them the full membership in US society to which they are entitled.”
