On Wednesday afternoon, dozens of immigrants and allies gathered in Langley Park, Maryland, to celebrate a major win: A federal judge had just indefinitely blocked the Trump administration’s executive order undermining birthright citizenship. “The people united will never be defeated,” they chanted in Spanish. On the front row, mothers held their infant children.
On his first day back in office, Trump signed an executive order titled “Protecting the Meaning and Value of American Citizenship.” It challenges the established understanding that the 14th Amendment’s citizenship clause—which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens and extends universal birthright citizenship to everyone born on US soil.
As a matter of policy, the order instructs the heads of departments and agencies to not issue or accept documents recognizing the citizenship of American children born after February 19 to undocumented mothers and those on temporary tourist, student, or work visas (unless the father is a citizen or legal permanent resident). As I previously reported, the move is part of a decades-long push on the right to end birthright citizenship.
The executive order almost immediately prompted court challenges, setting in motion what is likely to be a prolonged legal battle that could make its way to the Supreme Court. On Wednesday, Judge Deborah L. Boardman, a Biden appointee to the US District Court of Maryland, unmistakably rejected President Donald Trump’s efforts to rewrite the Constitution.
“The executive order conflicts with the plain language of the 14th amendment,” she said “contradicts a 125-year-old binding Supreme Court precedent, and runs counter to our nation’s 250-year history of citizenship by birth.” Upon granting a preliminary injunction halting the implementation of the order nationwide while the merits of the case are litigated, Judge Boardman predicted Trump’s executive order would likely be found unconstitutional.
“We have stopped a great offense against our communities and against the Constitution of the country we live in,” said George Escobar, chief of programs and services at CASA—the plaintiff alongside the Asylum Seeker Advocacy Project (ASAP) and five pregnant women without lawful status—suing the Trump administration over the executive order denying automatic citizenship to the US-born children of certain immigrants. “Because of their strength and their will to fight back in the face of deportations, in the face of unprecedented threats against who they are, they have accomplished an extraordinary victory today.”
Yesterday’s setback in Maryland was not the first for the Trump administration. Last month, a federal judge in Seattle ruled against the federal government in a case brought by four states—Washington, Arizona, Illinois, and Oregon. Calling the executive order “blatantly unconstitutional,” Judge John C. Coughenour, who was appointed to the federal bench by President Ronald Reagan, granted a temporary restraining order blocking the presidential action from taking effect for 14 days.
“I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order,” he said. “It just boggles my mind.”
The plaintiffs in the Maryland case argued in a 38-page complaint that Trump’s executive order is a “flagrant violation” of the 14th Amendment and the president doesn’t have “unilateral authority to override rights recognized in the Constitution or in federal statutes.”
During the hearing, Joseph Mead, lead attorney with Georgetown Law School’s Institute for Constitutional Advocacy and Protection, contended that Trump’s executive order “declared everyone’s been getting it wrong this whole time,” and the government’s position proposes a “re-imagination” of the 14th amendment.
“[The order] infringes upon the most fundamental constitutional right,” Mead said. “Being considered a citizen is the foundation for so many other rights. And it is causing real world confusion, fear, harm, for countless people today.”
In the aftermath of the Supreme Court’s ruling in Dred Scott that denied African Americans citizenship, the 14th Amendment was intended to expand birthright citizenship, with all but narrow exceptions including the children of foreign diplomats and of enemies in a hostile occupation. The Supreme Court’s landmark Wong Kim Ark case of 1898 reaffirmed that, finding that a San-Francisco born son of Chinese immigrants who couldn’t naturalize due to exclusion laws was a citizen of the United States by birth.
On the other side, the government’s lawyer Eric Hamilton argued the plaintiff’s claim was based on a “misreading” of the 14th Amendment and that framers didn’t mean to create a “loophole to be exploited by temporary visitors to the country and illegal aliens.”
The Justice Department argued Wong Kim Ark didn’t warrant a broad application of the 14th amendment. Drawing form language in that decision, Hamilton claimed that the “subject to the jurisdiction of ” clause implies a requirement that the parents be “domiciled” in and owe total “allegiance” to the United States in order for their children to not be excluded from birthright citizenship.
The judge was skeptical, asking the government to provide legal precedents to support the president’s interpretation of the 14th Amendment. “Today, virtually every baby born on US soil is a US citizen upon birth,” Judge Boardman said. “That is the law and tradition of our country. That law and tradition are and will remain the status quo pending the resolution of this case.” She continued: “If anything, our system of government is improved by an injunction that prevents unconstitutional executive action.”
After the hearing, CASA’s general counsel Nick Katz welcomed the judge’s decision and expressed optimist that plaintiffs will prevail. “When you zoom out to look at this from a broader lens, the impact this executive order is having on pregnant mothers is terrible,” he said. “One of our plaintiffs has been in this country for 20 years and president Trump is trying to say that if her children are born here they’re not citizens despite the fact that she has two other children who are citizens as the law has been applied and understood for hundreds of years. We’re happy to win this fight but I think it’s part of a broader narrative of fear and assault on immigrant communities that is coming out of the White House and we’re going to continue to fight against that.”
