Two babies are born, to two sets of parents who are undocumented immigrants. One baby is born in Spokane. The other baby is born a 20-minute drive away in Post Falls, Idaho. On Thursday, at the U.S. Supreme Court, the Trump administration will argue that, for now, the baby born in Spokane is an American citizen, while the baby born in Idaho is not. As President Donald Trump has sought to undo birthright citizenship — the idea, embedded in the 14th Amendment to the Constitution, that every person born in America is an American citizen — he has, so far, been defeated in every courtroom his lawyers have entered. Four federal judges,
including one in Seattle , have temporarily blocked Trump’s executive order, issued on his first day in office, revoking birthright citizenship. Three appeals courts have upheld those rulings. The cases now
arrive at the Supreme Court at a preliminary stage. The arguments are not about the larger issue of whether the Constitution grants citizenship to everyone born here or not. They are about whether, when those federal judges — in three different states — blocked Trump’s executive order, their rulings should have been limited to only those individuals or states directly involved in the cases.
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The Trump administration still asserts that neither the Spokane baby nor the Idaho baby are citizens, because their parents are undocumented. That constitutional argument is still playing out in lower courts. But in the meantime, the Trump administration wants the Supreme Court to limit the use of nationwide injunctions by federal judges, arguing that the elected president should not have his actions blocked nationwide by a single judge in a single jurisdiction. There are more than 1,000 federal judges in 94 districts across the country,
the administration wrote , and “the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.” Still, there is no guarantee the Supreme Court will limit arguments, or its eventual decision, just to the issue of injunctions, and not delve into the underlying constitutionality of Trump’s executive order. Washington (joined by Oregon, Illinois and Arizona) was the first state to
challenge Trump’s order on birthright citizenship . Two days later in Seattle, Judge John Coughenour, an appointee of Ronald Reagan with more than 40 years on the bench,
called Trump’s actions “blatantly unconstitutional ” and blocked the executive order nationwide, while the legal battle plays out. Judges in Maryland and Massachusetts quickly followed, issuing nationwide injunctions to block Trump’s order. The judges in these cases, the administration argues, should have blocked Trump’s order only for the 18 individuals (including two pregnant
Washington women who sued separately ) named in one of the lawsuits. If that’s too limiting, the administration argues, then while the legal battles continue, birthright citizenship should remain in place only in the 22 states that filed a lawsuit and it should cease in any state that didn’t file a lawsuit. Washington and the other states have argued that a patchwork system of citizenship, where whether you’re an American citizen or not depends on which state you’re born in, is both unconstitutional and unworkable. Washington Attorney General Nick Brown, who brought the lawsuit against Trump,
one of 17 times he has sued the administration in the first four months of Trump’s second term, will be at the Supreme Court for arguments Thursday, although he will not participate. The New Jersey attorney general’s office will lead the arguments for the states challenging Trump. In an interview from Seattle-Tacoma International Airport on Tuesday, on his way to Washington, D.C., Brown called the administration’s case “sort of a nonsense argument.” Brown said there are good arguments for limiting the scope of a judge’s decision in many instances, “but this is one of those cases where it wouldn’t make much sense.” “If you had someone who was born in Washington state, for example, and was granted citizenship because of our participation in this case, and then they left and went to Idaho, that didn’t participate, would they lose their citizenship? Would they have no country at all? It really wouldn’t make any sense,” Brown said. “U.S. citizenship does not stop at a state border.” Trump’s “attempt to unilaterally amend the Fourteenth Amendment warrants an injunction that preserves the guarantee of birthright citizenship as it has long existed,” Brown
wrote to the Supreme Court . “A uniform right that applies nationwide and is beyond the President’s power to destroy.” Seven of Washington’s eight Democratic members of the House of Representatives (all but Rep. Marie Gluesenkamp Perez) have signed on to an
amicus brief supporting Brown’s position . So has
King County . U.S. Rep. Michael Baumgartner, R-Spokane, has
signed a brief supporting Trump’s position . The underlying issue, which the Trump administration is still contesting in three appeals courts across the country, concerns the meaning of the Citizenship Clause of the 14th Amendment to the Constitution, which was adopted after the Civil War. The clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
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For more than a century, courts and presidential administrations of both parties have interpreted this to mean that if you are born in the United States, you are an American citizen. “If the government wants to change the exceptional American grant of birthright citizenship, it needs to amend the Constitution itself,”
Coughenour said from his Seattle courtroom in February, as he blocked Trump’s order. “The Constitution is not something with which the government may play policy games.” Trump’s executive order argues that children of undocumented immigrants are not “subject to the jurisdiction” of the United States and therefore are not citizens. It would strip citizenship from around 150,000 babies each year, including 4,000 in Washington, according to the states challenging Trump. It would strip citizenship not just from babies whose parents are in the country illegally, but also from those whose mother is here legally but temporarily, like on a student or work visa. Blocking the order from taking effect in only the states that sued, another group of
challengers wrote , would lead to a situation like one that existed between free and slave states before the 14th Amendment, where a Black child would be a citizen if born in a free state, but not if born in a slave state. “Such an arrangement would threaten to fundamentally fracture the country,” they wrote. “An infant would be a United States citizen and full member of society if born in New Jersey, but a deportable noncitizen if born in Tennessee. The Reconstruction Amendments, including the Citizenship Clause, were intended to prevent that sort of division between the states from ever occurring again.”