By Howard Fischer
Mail | X: @azcapmedia

Calling birthright citizenship “an unequivocal constitutional right,” a federal judge on Thursday blocked the Trump administration from implementing its plan to deny that to children born to people who are not here legally.

“The Citizenship Clause is clear: ‘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,’” wrote Judge John Coughenor. And he rejected claims by lawyers for the Department of Justice that clause, part of the 14th Amendment passed after the Civil War, really was designed only to protect freed slaves and other Black Americans.

“It is one of the precious principles that makes the United States the great nation that it is,” the judge wrote of citizenship by birth. “The president cannot change, limit, or qualify this constitutional right via an executive order.”

Coughenor’s order is not the last word but simply a preliminary injunction. That still gives the Trump administration a chance to try to convince him at a full-blown trial that he is wrong.

But the judge pointed out one of the requirements he is required to consider in issuing such an injunction is whether the challengers — in this case, Arizona Attorney General Kris Mayes and counterparts from several other states — are ultimately likely to prevail. And in this case, Coughenor said, they have made that case.

The judge said the challengers also met another test for obtaining an injunction. He said allowing the administration to deny citizenship to certain children born in this country would result in “irreparable harm” to the states in having to provide essential medical care and social services for those whom the Trump order would declare ineligible for federal benefits.

To drive home the point, Coughenor said even though only several states, including Arizona, filed this case to block the Trump directive, he was barring the administration from implementing its plan anywhere in the United States. He said to do otherwise would create a situation where babies born in some states not protected by a court order would travel to those states where there was an injunction.

“This is, simply said, perverse and bizarre,” Coughenor wrote.
Thursday’s order is not a surprise. At an earlier hearing, Coughenor, nominated to the federal bench in 1981 by President Ronald Reagan, told attorneys for the government they were on shaky legal ground at best.

“I can’t remember another case where the question presented is as clear as it is now,” he said. “This is a blatantly unconstitutional order.”

Thursday’s action is not the first in the legal fight. A federal judge in Maryland issued a similar order on Wednesday.
Trump’s order is designed to spell out who is no longer entitled to what has been the automatic presumption of citizenship for those born on U.S. soil.

That involves cases where the mother is not legally present in the country and the father is neither a U.S. citizen or lawful permanent resident. All that is based on the government’s claim that they are “not subject to the jurisdiction” of the United States.

To sustain that argument, the order also covers situations where a woman is in the country legally but temporarily, such as a visitor’s visa, when the father is neither a citizen nor lawful permanent resident.

To enforce it, Trump directed federal agencies not to issue citizenship documents to those who fall under either circumstance and not to accept documents issued by state, local or other government purporting to recognize citizenship.

Coughenor was not convinced.

“The government insinuates that ‘subject to the jurisdiction’ conditions citizenship upon the exclusive jurisdiction of the United States,” he wrote.

“But the text of the phrase requires no such exclusivity,” the judge continued. “It requires only that the person born in the United States be subject to it.”

Nor was he convinced any of this related to the status of the parents and what government lawyers called their allegiance and domicile in this country.

“But the words ‘allegiance’ and ‘domicile’ do not appear in the Citizenship Clause, or anywhere in the 14th Amendment,” Coughenor said. “And nowhere in the text does it refer to a person’s parentage.”

The judge said the only thing in the clause is the word “jurisdiction.” And that, he said, is simply a geographic area in which political or judicial authority can be exercised.

“That is the plain meaning of the phrase ‘subject to the jurisdiction,’” Coughenor wrote. “And it unequivocally applies to children born in the territorial United States — regardless of the immigration status of their parents.”

Coughenor said this is not just his opinion. He pointed to an 1898 Supreme Court ruling that concluded that a child born in California to Chinese nationals acquired U.S. citizenship at birth because of the 14th Amendment.

In that case, the justices said there were only three exceptions: children of foreign diplomats, children born of enemies during a hostile occupation, and children of members of Indian tribes — the last having been the law at that time until a 1924 law granting citizenship status to all Native Americans born in the United States regardless of tribal affiliation.

“In other words, ‘aliens’ and others who avail themselves of this country for non-diplomatic purposes — whether lawfully or not — are necessarily ‘subject to the jurisdiction’ of the United States,” Coughenor wrote citing that 1898 ruling.

“So, too, are children born of said ‘aliens’ on United States territory,” he said. “To construe the phrase otherwise would be dangerous to society and delegitimize this country’s jurisdiction over the persons who inhabit it.”

In a prepared statement, Mayes called Thursday’s ruling “a win for the Constitution and the rule of law.”