A federal appeals court on Wednesday once again blocked President Donald Trump's attempt to repeal birthright citizenship, the idea rooted in the 14th Amendment to the Constitution that every person born in the United States is an American citizen.
Trump's executive order is invalid because it contradicts the plain language of the Fourteenth Amendment’s grant of citizenship," Judge Ronald Gould wrote for a three-judge panel of the U.S. Court of Appeals for the 9th Circuit.
The court blocked, temporarily, Trump's order from going into effect nationwide, while the case continues to play out.
Ever since Trump issued his birthright executive order on his first day in office, courts across the country have ruled it unconstitutional and blocked it from going into effect anywhere.
But on June 27, the U.S. Supreme Court, without considering the constitutionality of Trump's action, ruled that lower courts had overstepped in blocking Trump's order from taking effect nationwide. The Supreme Court, in a 6-3 decision, ruled that federal judges cannot block a presidential action nationwide unless it is necessary to "provide complete relief to each plaintiff."
The Supreme Court paused the lower court decisions, asked lower courts to reconsider whether they could offer narrower relief, and started a 30-day ticking clock for Trump's order to take effect.
Since 22 states, including Washington, are plaintiffs in the case suing the Trump administration to block the executive order, that left open the possibility that the order could take effect in some states, but not others. That would've meant that a baby born to undocumented parents in Washington would be a citizen, but a baby born to similar parents next door in Idaho would not be.
But Gould, an appointee of former President Bill Clinton, wrote that it was necessary to block Trump's order nationwide in order to give "complete relief" to the states that sued. He was joined in his opinion by Judge Michael Daly Hawkins, also a Clinton appointee.
The 14th Amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The Trump administration has argued that children of undocumented immigrants are not “subject to the jurisdiction” of the United States and therefore are not citizens.
But that argument, the court found, is contrary to the "express language" of the Constitution, a century-old Supreme Court precedent, 125 years of executive branch practice and "it is contrary to justice."
"One power that the President was not granted, by Article II or by any other source, is the power to modify or change any clause of the United States Constitution," Gould wrote. "Perhaps the Executive Branch, recognizing that it could not change the Constitution, phrased its Executive Order in terms of a strained and novel interpretation of the Constitution."
Judge Patrick Bumatay, a Trump appointee, dissented, writing that the states did not have standing to sue.
Washington Attorney General Nick Brown, who sued the day after Trump issued his order, said "the president cannot redefine what it means to be American with the stroke of a pen.
"He cannot strip away the rights, liberties and protections of children born in our country," Brown said in a prepared statement Wednesday.
Trump's order would bar the government from issuing passports and other citizenship documents to the children of parents who are here illegally or those here legally but temporarily.
Brown has consistently argued that to get "complete relief" the state needs a nationwide block on Trump's birthright citizenship order.
It is unworkable, the state has argued, for citizenship to depend on which state you are born in. A child born in Idaho, the state has argued, would be a noncitizen there, but potentially a citizen if they moved to Washington. Washington would have to determine whether they're eligible for programs like Medicaid and would lose federal funding if the child is deemed a noncitizen.
The Trump administration, attorneys for the state wrote in a recent court filing, is arguing "that a child's American citizenship could turn on and off depending on the state where the child is physically present or the purpose for which one's citizenship is being used."
"The record is unrebutted that a patchwork system of U.S. citizenship will cause the Plaintiff States substantial and irreparable harm," Washington wrote.
Gould agreed, writing that states would have to overhaul their systems for determining citizenship, if Trump's order goes into effect.
"It is impossible to avoid this harm absent a uniform application of the Citizenship Clause throughout the United States," he wrote.
The Trump administration argued that states like Washington don't have standing to sue to block the order; that their funding losses would be too minor to allow them to challenge the order.
It also argued that it's not necessary to block Trump's order nationwide in order to give states like Washington "complete relief. It argued the court could simply order the federal government to continue providing funding for Medicaid and similar programs for children in Washington even if they are deemed noncitizens in other states.
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