US appeals court indiciates it might declare Trump’s birthright citizenship order unconstitutional

Donald Trump’s order restricting birthright citizenship appeared on Friday to be headed toward being declared unconstitutional by a second federal appeals court, as judges expressed deep skepticism about a key piece of the US president’s hardline immigration agenda.

A three-judge panel of the Boston-based first US circuit court of appeals sharply questioned a lawyer with the federal justice department as to why they should overturn two lower-court judges who blocked the order from taking effect.

Those lower-court judges include one in Boston who last week reaffirmed his prior decision to block the order’s enforcement nationally, even after the US supreme court in June curbed the power of judges to broadly enjoin that and other policies.

The San Francisco-based ninth US circuit court of appeals last week became the first federal appeals court to hold Trump’s order as unconstitutional. Its ultimate fate will probably be determined by the supreme court.

Eric McArthur, a justice department attorney, said on Friday that the citizenship clause of the US constitution’s 14th amendment, which was ratified in 1868 after the US civil war, rightly extended citizenship to the children of newly freed enslaved Black people.

“It did not extend birthright citizenship as a matter of constitutional right” to the children of people in the US without documentation, he said.

But the judges questioned how that argument was consistent with the supreme court’s 1898 ruling interpreting the clause in United States v Wong Kim Ark, long understood as guaranteeing American citizenship to children born in the US to non-citizen parents.

“We have an opinion by the supreme court that we aren’t free to disregard,” said David Barron, the chief US circuit judge who like his two colleagues was appointed by a Democratic president.

Trump’s executive order, issued on the Republican’s first day back in the Oval Office on 20 January, directs agencies to refuse to recognize the citizenship of US-born children who do not have at least one parent who is a US citizen or lawful permanent resident, also known as a “green card” holder.

Every court to consider the order’s merits has declared it unconstitutional, including the three judges who halted the order’s enforcement nationally. Those judges included Leo Sorokin, a US district judge in Boston, who ruled in favor of 18 Democratic-led states and the District of Columbia, who had swiftly challenged Trump’s policy in court.

“The supreme court has repeatedly recognized children born to individuals who are here unlawfully or who are here on a temporary basis are nonetheless birthright citizens,” Shankar Duraiswamy, a lawyer for New Jersey, argued on Friday.

The 6-3 conservative majority US supreme court on 27 June sided with the administration in the litigation by restricting the ability of judges to issue so-called universal injunctions and directing lower courts that had blocked Trump’s policy nationally to reconsider the scope of their orders.

But the ruling contained exceptions, allowing federal judges in Massachusetts and New Hampshire and the ninth circuit to issue new decisions stopping Trump’s order from taking effect nationally.

The rulings on appeal to the first circuit were issued by Sorokin and the New Hampshire judge, who originally issued a narrow injunction but more recently issued a new decision in a recently filed class action blocking Trump’s order nationwide.

Separately, in an immigration-related ruling on Friday, US district Judge Jia Cobb in Washington DC blocked the Trump administration from fast-tracking the deportation of potentially hundreds of thousands of immigrants who were paroled into the country under humanitarian programs during Joe Biden’s presidency.

Cobb said it served the public interest to put on hold the Department of Homeland Security’s expedited removals for those who entered with temporary parole rather than cause irreparable harm to immigrants by allowing them.