A federal appeals court continued Tuesday to block President Donald Trump’s order to end automatic citizenship to children born to two parents who are not legally authorized to be in the country, another setback for his top priority of strengthening immigration enforcement.
The 1st U.S. Circuit Court of Appeals covering New England became the nation’s second federal appeals court to refuse Trump’s request to allow his order to take effect while the case is litigated, after the 9th U.S. Circuit Court of Appeals along the West Coast. Trump has said he expects to eventually win the legal dispute at the Supreme Court.
A three-judge appeals panel refused to overturn the lower-court’s injunction, which found the states were likely to succeed in proving the order violated the Constitution and that the children at stake would be irreparably harmed.
Chief Judge David Barron wrote for Judges Julie Rikelman and Seth Aframe that the government hadn’t made a “strong showing” that the state attorneys general were likely to lose their case nor that the government was “likely to succeed in showing that the Executive Order is lawful.”
New Jersey Attorney General Matthew Platkin, who led the case, said every court that has reviewed Trump’s order found it “flagrantly unconstitutional” and appeals courts have refused to put it back in place.
“We are thrilled with the First Circuit’s decision, and we look forward to standing up for our birthright citizens no matter how far the Trump Administration takes this case,” Platkin said in a statement.
Trump signed the executive order on his first day back in office Jan. 20. He directed U.S. agencies to refuse to recognize the citizenship of children born in the United States if neither their mother nor father was a U.S. citizen or lawful permanent resident.
The order aimed to revoke a longstanding provision of the Constitution that has been upheld in the Supreme Court. At least 10 federal lawsuits challenged the order and several judges temporarily blocked its enforcement.
The 14th Amendment ratified in 1868 after the Civil War states: “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.”
A Supreme Court decision in 1898 upheld the interpretation that anyone born in the U.S. is a citizen.
But Trump disputed that interpretation based on the phrase “subject to the jurisdiction thereof.” The phrase is traditionally taken to mean the children of diplomats, but Trump expanded it to apply to the children of undocumented immigrants.
Government lawyers argued that blocking Trump’s order “prevents the President from carrying out his broad authority over and responsibility for immigration matters,” harming the public interest.
A federal judge in Washington state called Trump’s order “blatantly unconstitutional.”
If allowed to stand, Trump’s order would for the first time deny more than 150,000 children born annually in the United States the right to citizenship, according to 18 Democratic state attorneys general and lawyers representing San Francisco and Washington, DC.
