SEATTLE — Justice Department lawyers will appear in a federal courtroom Thursday to defend President Donald Trump’s executive order aimed at limiting birthright citizenship — the first action in what promises to be a protracted legal battle over the new administration’s agenda.
Senior U.S. District Judge John C. Coughenour will hear arguments during the hearing, which is scheduled to start at 10 a.m. PT, on a request by four states (Washington, Arizona, Illinois and Oregon) to block the order before it is supposed to take effect in late February. It’s one of five lawsuits filed by Democratic attorneys general and immigrant rights organizations challenging the order — which seeks to limit automatic birthright citizenship to children of U.S. citizens and green card holders — as unconstitutional.
The Constitution’s 14th Amendment has long been understood to grant automatic citizenship to anyone born on U.S. soil except the children of foreign diplomats. An answer to the U.S. Supreme Court’s 1857 Dred Scott decision, which held that people descended from slaves were not citizens, the amendment begins with the sentence: “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.”
“President Trump and the federal government now seek to impose a modern version of Dred Scott,” lawyers representing the four states wrote in a court filing. “But nothing in the Constitution grants the President, federal agencies, or anyone else authority to impose conditions on the grant of citizenship to individuals born in the United States.”
If implemented, Trump’s order would cause the plaintiff states to lose federal funding that supports programs like Medicaid and the Children’s Health Insurance Program (CHIP), the lawyers argue. In addition to the “substantial financial losses,” the states would have to immediately bear the burden of modifying their administration of those programs to account for the change, the lawyers added.
“Absent a temporary restraining order, children born in the Plaintiff States will soon be rendered undocumented, subject to removal or detention, and many stateless,” the lawyers continued. “They will be denied their right to travel freely and re-enter the United States. They will lose their ability to obtain a Social Security number (SSN) and work lawfully as they grow up. They will be denied their right to vote, serve on juries, and run for certain offices. And they will be placed into positions of instability and insecurity as part of a new, Presidentially-created underclass in the United States.”
In their filings, Justice Department lawyers told Coughenour that the birthright citizenship order is an “integral part” of Trump’s efforts to “address this nation’s broken immigration system and the ongoing crisis at the southern border.”
Not only does Trump have the authority to issue the order, they argue, but the states lack standing to sue based on their alleged economic harms.
“A third party, including a state, has no legally cognizable interest in the recognition of citizenship by the federal government of a particular individual — let alone economic benefits or burdens that are wholly collateral to citizenship status,” Justice Department litigator Brad Rosenberg wrote.
While most of the Justice Department’s filing focuses on technical arguments about why the states cannot sue, Rosenberg previews some of the arguments that could come into play as this and other cases move forward: how, in the Justice Department’s view, courts have incorrectly interpreted the 14th Amendment for more than 100 years.
“Ample historical evidence shows that the children of non-resident aliens are subject to foreign powers — and, thus, are not subject to the jurisdiction of the United States and are not constitutionally entitled to birthright citizenship,” Rosenberg wrote.
Coughenour, an 84-year-old Ronald Reagan appointee, could rule immediately during Thursday’s hearing or issue a written order at a later date.
But any decision in this case or another lawsuit challenging the order is likely to be appealed all the way to the U.S. Supreme Court.
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