Judge Temporarily Blocks Trump’s Executive Order on Birthright Citizenship
Federal Judge John C. Coughenour of the United States District Court for the Western District of Washington placed a temporary block on President Donald Trump’s executive order that clarifies birthright citizenship.
Coughenour wrote, “This is a blatantly unconstitutional order.”
Coughenour determined the plaintiffs satisfied:
Merits: Violates the Fourteenth Amendment and Immigration and Nationality Act.
Irreparable harm: Increases “unrecoverable costs for providing essential medical care and social services to States’s residents and creating substantial administrative burdens for state agencies that are forced to comply with the Order.”
All of those tips the balance of equities “toward the Plaintiff States and the public interest” enough for temporary relief.
From The Seattle Times:
“I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order,” Coughenour, an appointee of Ronald Reagan, said from the bench. “There are other times in world history where we look back and people of goodwill can say where were the judges, where were the lawyers?”Coughenour interrupted before Brett Shumate, a Justice Department attorney, could even complete his first sentence.“In your opinion Is this executive order constitutional?” he asked.Shumate said “it absolutely is.”“Frankly, I have difficulty understanding how a member of the Bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”
On his first day in office, Trump signed “Protecting the Meaning and Value of American Citizenship.”
The executive order is meant to clarify the 14th Amendment:
Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment states: “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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.
Okay, let’s look at the history of the Citizenship Clause in the 14th Amendment:
Fourteenth Amendment, Section 1: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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It’s easy to interpret the meaning of the clause by reading it.
But how did the authors of the amendment interpret it?
In 1866, Republican Michigan Sen. Jacob Howard introduced the clause’s text to the chamber after Senator William Pitt Fessenden, Chair of the Joint Committee on Reconstruction, got sick.
“This amendment which I have offered, is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States,” he said.The next line in the publication matches the quote in the post above word for word.”This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
This is where grammar comes into play. One could interpret Howard’s sentence as saying the clause does not apply to foreigners.
However, if you look at the commas, one could also interpret it as “aliens” modifying “foreigners,” and those foreigners are the foreign diplomats. That means the children born to ambassadors or other foreign diplomats here in America cannot receive citizenship.
But “every other class of persons” can.
I am an originalist and English major. Therefore, I believe Howard clarified that the amendment applies to everyone except the children born to foreign diplomats.
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