EMERGENCY DOCKET

Challengers to Trump’s order tell justices to allow birthright citizenship to stand

Lawyers for two different groups of states, as well as lawyers representing immigrants’ rights groups and several pregnant women, urged the Supreme Court on Friday to leave in place three orders by federal judges that prohibit the federal government from implementing an executive order by President Donald Trump ending birthright citizenship – the guarantee of citizenship to almost everyone born in the United States. If the Supreme Court intervenes when the Trump administration “is so plainly wrong on the law,” the brief by Washington state (joined by three other states) warned, “there will be no end to stay applications and claims of emergency, undermining the proper role and stature of this Court.”

The United States is one of 30 countries, including Canada and Mexico, that offer virtually automatic citizenship to everyone born within their borders. The concept of birthright citizenship was explicitly added to the Constitution in 1868, following the Civil War and Emancipation. The 14th Amendment provides that “[a]ll 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.”

In an executive order signed on Jan. 20 and originally slated to go into effect 30 days later, Trump declared that children born in the United States will not be automatically entitled to citizenship if their parents are in this country illegally or temporarily.

Before the order could go into effect, several different challenges were filed in courts around the country. In Seattle, Senior U.S. District Judge John Coughenour called birthright citizenship a “fundamental constitutional right” and said that Trump’s order was “blatantly unconstitutional.” He granted a request from Washington and three other states (Arizona, Illinois, and Oregon) to temporarily bar the government from implementing the order.

A federal appeals court in San Francisco rejected the government’s plea to pause Coughenour’s order while its appeal moves forward.

In Maryland, U.S. District Judge Deborah Boardman also issued an order on Feb. 5 that temporarily prohibited the government from applying the order. In granting a request from immigrants’ rights groups and expectant mothers, Boardman emphasized that “no court in the country has ever endorsed the president’s interpretation,” adding that she “will not be the first.”

A federal appeals court in Richmond, Va., declined to partly block Boardman’s ruling while the government’s appeal continued. Judge Paul Niemeyer, who dissented from that decision, called the Trump administration’s request a “modest motion.”

A third judge, Leo Sorokin of the District of Massachusetts, also blocked the government from enforcing the order, in a case filed by 18 states, the District of Columbia, and San Francisco. Like the other courts of appeals, the U.S. Court of Appeals for the 1st Circuit refused to partly block Sorkin’s order.

Acting Solicitor General Sarah Harris came to the Supreme Court on March 13, asking the justices to partially block the three orders, so that the government would only be barred from enforcing them with respect to (at most) the individuals named in the complaints, the members of the groups challenging the order, and the residents of the states challenging the order. At the very least, Harris said, while the litigation continues the federal government should be able to make plans to implement the order.

The briefs filed by the challengers on Friday echo similar themes. First, they told the justices, there is no emergency requiring the Supreme Court to step in. There has long been broad agreement – among the justices of the Supreme Court, Congress, the executive branch, and legal scholars – that the Constitution guarantees citizenship to virtually everyone born in this country, they said. “Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay,” Washington Solicitor General Noah Purcell wrote. This is particularly true, the brief filed by New Jersey and 17 other states (along with D.C. and San Francisco) added, when the Trump administration does not “even attempt” to challenge the underlying merits of the district courts’ orders.

Second, they contended, the court should not narrow the scope of the orders that the district courts entered, but instead leave in place the nationwide (sometimes described as “universal”) injunctions issued in each of the three cases. The Supreme Court has allowed nationwide injunctions when “necessary to provide complete relief,” Washington state explained, and in this case the whole point of the 14th Amendment was to “create a uniform, national rule for citizenship.”

Because “children often move across state lines or are born outside their parents’ home states,” New Jersey added, “any patchwork injunction” that covered only some of the states “would be both unworkable and fail to remedy the States’ harms.”

CASA and the Asylum Seeker Advocacy Project, the two immigrants’ rights groups challenging the president’s order in Maryland (along with several expectant mothers), emphasized that between them they have “more than 800,000 members, spread across all 50 states.” “The only workable way to ensure that the government respects the constitutionally guaranteed citizenship of all children born to those members during the pendency of this litigation is through a universal injunction.” Granting the government’s request to block the lower courts’ orders would lead to “chaos,” they said, because existing birth certificates would not be enough to prove citizenship for any child born in the United States – including those whose parents are both U.S. citizens.

The challengers also pushed back against the government’s suggestion that district courts more generally have been issuing too many nationwide injunctions that block the Trump administration from being able to “carry out its functions.”

CASA insisted that the number of nationwide injunctions issued this year “must be understood in proportion to the number of major policies announced through Executive Orders.” Trump, they stressed, “has already issued more than 100 Executive Orders in his second term, far and away the most ever for this point in a presidential term.”  

And in any event, New Jersey continued, the fact that the Trump administration may be “frustrated by the scope of relief awarded in other cases, filed by other parties, involving other injuries and other administrability arguments,” does not justify the Supreme Court intervening in this case.

The challengers similarly resisted the government’s contention that keeping the district courts’ orders in place would make it more difficult for the president to “address the crisis at the Nation’s southern border.” CASA noted first that this case does not involve immigration, but instead the rights of people who are already in this country. But in any event, to the extent that the order is intended to address border security, it casts too broad a net, targeting people who may have nothing to do with the southern border – such as the children of people who came to this country on work or student visas.

And, finally, the challengers maintained that there is no reason for the court to grant the government’s request to at the very least be allowed to make internal plans to implement the executive order. CASA told the justices that, among other things, they should not weigh in on this question because the government did not make this argument in the lower court.

This article was originally published at Howe on the Court.