Trump's order seeking to block birthright citizenship to face next legal hurdle
President Donald Trump's executive order seeking to end birthright citizenship will face its next legal hurdle this week when three separate federal judges hold hearings to consider whether to block the order.
Ahead of the hearings, lawyers with the Department of Justice argued in legal filings that birthright citizenship creates a "perverse incentive for illegal immigration" while claiming that Trump's executive order attempts to resolve "prior misimpressions" of the Fourteenth Amendment.
"Text, history, and precedent support what common sense compels: the Constitution does not harbor a windfall clause granting American citizenship to, inter alia, the children of those who have circumvented (or outright defied) federal immigration laws," Acting Assistant Attorney General Brett Shumate wrote in a recent filing.
U.S. District Judge John Coughenour blocked the order last month -- describing it as "blatantly unconstitutional " -- with a temporary restraining order that is set to expire this week.
Coughenour scheduled a Thursday morning hearing to consider whether to issue a preliminary injunction ordering the Trump administration to stop enforcing the order.
Judges in two additional federal cases challenging the order also scheduled hearings this week, including a Wednesday hearing in a Maryland case filed by five undocumented pregnant women and a Friday hearing in a lawsuit filed by 18 state attorneys general.
The hearings will likely provide the first opportunity for Department of Justice lawyers to outline their defense of Trump's Day-1 executive order that sought to eliminate birthright citizenship for the children of undocumented immigrants or immigrants whose presence in the United States is lawful but temporary.
According to a recent court filing, Trump's executive order clarified the phrase "subject to the jurisdiction" within the citizenship clause of the 14th Amendment, interpreting the phrase to mean that immigrants in the country unlawfully or temporarily would not be entitled to birthright citizenship.
"Prior misimpressions of the Citizenship Clause have created a perverse incentive for illegal immigration that has negatively impacted this country's sovereignty, national security, and economic stability," the lawsuit said. "But the generation that enacted the Fourteenth Amendment did not fate the United States to such a reality."
Lawyers for the Department of Justice attempted to defend the lawfulness of the order by comparing undocumented immigrants to the foreign diplomats, who are not entitled to birthright citizenship.
"Just as that does not hold for diplomats or occupying enemies, it similarly does not hold for foreigners admitted temporarily or individuals here illegally," the filing said.
While the Supreme Court established birthright citizenship in the 1898 case United States v. Wong Kim Ark, DOJ lawyers claim that the case is only relevant for the children of parents with "permanent domicile and residence" in the United States, suggesting the executive order does not run afoul of the longstanding legal precedent.
"And if the United States has not consented to someone's enduring presence, it follows that it has not consented to making citizens of that person's children," the lawsuit said.
Trump's executive order got a frosty reception last month when Judge Coughenour, in the course of issuing his temporary restraining order, reprimanded the Department of Justice attorney who suggested that Trump's executive order was constitutional.
"I have been on the bench for over four decades," said Judge Coughenour. "I can't remember another case where the question presented is as clear as it is here."
Trump, vowing to appeal the temporary restraining order, criticized Judge Coughenour -- who was nominated to the bench by President Ronald Reagan in 1981-- as partisan.
"Obviously, we'll appeal it. They put it before a certain judge -- in Seattle, I guess, right? And there's no surprises with that judge," Trump said from the Oval Office.
