SEATTLE (AP) — A federal judge on Thursday temporarily blocked President Donald Trump’s executive order redefining birthright citizenship, calling it “blatantly unconstitutional” during the first hearing in a multi-state effort challenging the order.
U.S. District Judge John Coughenour repeatedly interrupted a Justice Department lawyer to ask how he could consider the order constitutional. When the attorney, Brett Shumate, said he’d like a chance to explain it in a full briefing, Coughenour told him the hearing was his chance.
The temporary restraining order sought by Arizona, Illinois, Oregon and Washington was the first to get a hearing before a judge and applies nationally.
The case is one of five lawsuits being brought by 22 states and a number of immigrants rights groups across the country. The suits include personal testimonies from attorneys general who are U.S. citizens by birthright, and names pregnant women who are afraid their children won’t become U.S. citizens.
Coughenour, a Ronald Reagan appointee, grilled the DOJ attorneys, saying the order “boggles the mind.”
“This is a blatantly unconstitutional order,” Coughenour told Shumate. The judge said he’s been on the bench for more than four decades, and he couldn’t remember seeing another case where the action challenged so clearly violated the constitution.
Shumate said he respectfully disagreed and asked the judge for an opportunity to have a full briefing on the merits of the case, rather than have a 14-day restraining order issued blocking its implementation.
The Department of Justice later said in a statement that it will “vigorously defend” the president’s executive order, which it said “correctly interprets the 14th Amendment of the U.S. Constitution.”
“We look forward to presenting a full merits argument to the Court and to the American people, who are desperate to see our Nation’s laws enforced,” the department said.
Arguing for the states, Washington assistant attorney general Lane Polozola labeled as “absurd” the government’s argument that the children of parents living in the country illegally are not “subject to the jurisdiction” of the United States.
“Are they not subject to the decisions of the immigration courts?” he asked. “Must they not follow the law while they are here?”
He also said the restraining order was warranted because, among other reasons, the executive order would immediately start requiring the states to spend millions to revamp health care and benefits systems to reconsider an applicant’s citizenship status.
“The executive order will impact hundreds of thousands of citizens nationwide who will lose their citizenship under this new rule,” Polozola said. “Births cannot be paused while the court considers this case.”
The Trump administration has said that the order, signed by the president on Inauguration Day, would only affect those born after Feb. 19, when it is slated to take effect. Therefore, it argued, temporary relief isn’t called for.
Washington Attorney General Nick Brown told reporters afterward he was not surprised that Coughenour had little patience with the Justice Department’s position, considering that the Citizenship Clause arose from one of the darkest chapters of American law, the Supreme Court’s 1857 Dred Scott decision, which held that African Americans, whether enslaved or free, were not entitled to citizenship.
“Babies are being born today, tomorrow, every day, all across this country, and so we had to act now,” Brown said. He added that it has been “the law of the land for generations, that you are an American citizen if you are born on American soil, period.”
“Nothing that the president can do will change that,” he said.
The U.S. is among about 30 countries where birthright citizenship — the principle of jus soli or “right of the soil” — is applied. Most are in the Americas, and Canada and Mexico are among them.
The lawsuits argue that the 14th Amendment to the U.S. Constitution guarantees citizenship for people born and naturalized in the U.S., and states have been interpreting the amendment that way for a century.
Ratified in 1868 in the aftermath of the Civil War, the amendment says: “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.”
Trump’s order asserts that the children of noncitizens are not subject to the jurisdiction of the United States, and orders federal agencies to not recognize citizenship for children who don’t have at least one parent who is a citizen.
A key case involving birthright citizenship unfolded in 1898. The Supreme Court held that Wong Kim Ark, who was born in San Francisco to Chinese immigrants, was a U.S. citizen because he was born in the country. After a trip abroad, he faced being denied reentry by the federal government on the grounds that he wasn’t a citizen under the Chinese Exclusion Act.
But some advocates of immigration restrictions have argued that case clearly applied to children born to parents who were both legal immigrants. They say it’s less clear whether it applies to children born to parents living in the country illegally.
Trump’s order prompted attorneys general to share their personal connections to birthright citizenship. Connecticut Attorney General William Tong, for instance, a U.S. citizen by birthright and the nation’s first Chinese American elected attorney general, said the lawsuit was personal for him.
“There is no legitimate legal debate on this question. But the fact that Trump is dead wrong will not prevent him from inflicting serious harm right now on American families like my own,” Tong said this week.
One of the lawsuits aimed at blocking the executive order includes the case of a pregnant woman, identified as “Carmen,” who is not a citizen but has lived in the United States for more than 15 years and has a pending visa application that could lead to permanent residency status.
“Stripping children of the ‘priceless treasure’ of citizenship is a grave injury,” the suit says. “It denies them the full membership in U.S. society to which they are entitled.”
