Trump's Birthright Citizenship Order Is Unconstitutional, Says the First Appeals Court to Consider the Issue
The judgment is not surprising, since the president's reading of the 14th Amendment contradicts its text and history, plus 127 years of Supreme Court precedent.
The U.S. Court of Appeals for the 9th Circuit on Wednesday rejected President Donald Trump's attempt to restrict birthright citizenship by reinterpreting the 14th Amendment. This is the first time that an appeals court has addressed the constitutionality of Trump's executive order "Protecting the Meaning and Value of American Citizenship," which he issued on his first day in office. That order purported to exclude children whose mothers are unauthorized residents or legal temporary visitors from birthright citizenship unless their fathers are U.S. citizens or legal permanent residents.
The 9th Circuit's conclusion that Trump's edict violates the 14th Amendment is not surprising. Several lower courts have reached the same conclusion based on the overwhelming weight of the historical evidence, 127 years of Supreme Court precedent, and positions taken by federal officials in all three branches of government. But the solution approved by two members of the three-judge panel—a nationwide injunction that completely blocks enforcement of the order—is more contentious.
The decision in Washington v. Trump involves a preliminary injunction that John C. Coughenour, a federal judge in Seattle, issued in February. The plaintiffs include four states (Washington, Arizona, Illinois, and Oregon) and several noncitizens who were pregnant when the original lawsuit was filed.
The appeals court chose not to address the women's claims, noting that their children are covered by a preliminary injunction that a federal judge in New Hampshire granted on July 10, which applies to a nationwide class consisting of "all current and future persons" who are subject to Trump's order. But 9th Circuit Judges Michael Daly Hawkins and Ronald M. Gould concluded that the states had standing to sue in light of the financial costs and administrative burdens that the order would impose on them—an assessment that Judge Patrick J. Bumatay rejected in a partial dissent. The majority also concluded that a nationwide injunction was necessary to provide the state plaintiffs with "complete relief."
The fact that Trump's edict has now been blocked by two nationwide injunctions may seem inconsistent with the Supreme Court's June 27 ruling against "universal injunctions," which addressed Coughenour's order along with two others. But that decision in Trump v. CASA, which held that any "equitable remedy" approved by a federal court must be limited to the plaintiffs in that particular case, left open several alternatives to universal injunctions, including class actions like the case in New Hampshire and lawsuits like Washington v. Trump, where the states argued that only a nationwide order would adequately address their claims.
Washington and the other states complained that Trump's decree would cost them money because it would exclude certain children, totaling about 1,100 infants per month in the four states, from federally subsidized benefits. They said the order also would require them to change their procedures for verifying a child's eligibility for those benefits, since a birth certificate would no longer be enough to establish citizenship.
Hawkins and Gould, both of whom were appointed by President Bill Clinton, thought those costs were enough to give the states standing. And they concluded that an injunction limited to the four states would not adequately address their injuries, since the families of children born in other states might move to Washington, Arizona, Illinois, or Oregon.
Bumatay, a Trump appointee, vigorously disagreed, saying the injuries cited by the state plaintiffs rely on "speculation" about "indirect, downstream costs" and "assumptions about uncertain implementation," making them "too speculative" and "too attenuated" to establish standing. But Bumatay did not weigh in on the constitutionality of Trump's order, noting only that the issue "elicits strong reactions from all sides."
Coughenour certainly had a "strong reaction" to the claim that a president can unilaterally restrict birthright citizenship. "I've been on the bench for over four decades," he remarked when he granted a temporary restraining order against Trump's decree three days after it was issued. "I can't remember another case where the question presented [was] as clear as this one is. This is a blatantly unconstitutional order."
Coughenour's response was especially striking because he was appointed to the bench by President Ronald Reagan in 1981, which made it hard to dismiss him as the sort of "Radical Left Lunatic" whom Trump reflexively blames for interfering with his agenda. Coughenour explained his reasoning in detail the following month, when he issued the preliminary injunction that the 9th Circuit upheld. The appeals court's decision amplifies the points that Coughenour made.
The 14th Amendment says "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are "citizens of the United States." The Trump administration argues that the children covered by his order are not subject to U.S. jurisdiction because their parents cannot legally have a "permanent domicile" in this country and do not owe "primary allegiance" to the United States.
As Gould shows in the 9th Circuit's majority opinion, that definition of jurisdiction is inconsistent with the original public understanding of the 14th Amendment, as reflected in contemporaneous dictionary definitions, the debate prior to the amendment's ratification in 1868, and commentary shortly thereafter. The "ordinary meaning of jurisdiction" at the time, he says, "is consistent with Plaintiffs' interpretation of 'subject to the jurisdiction thereof' as subject to the laws and authority of the United States."
The government defendants "point to no contrary dictionary definitions that define jurisdiction in terms of allegiance and protection," Gould notes. "Indeed, they make no arguments about the ordinary meaning of the Citizenship Clause at all." Instead, they support their "novel interpretation of the phrase 'subject to the jurisdiction thereof'" by arguing that the phrase would be superfluous if it meant nothing more than the plaintiffs contend. Not so, Gould says, since that definition underlies the three exceptions to birthright citizenship that the Supreme Court recognized in the 1898 case United States v. Wong Kim Ark, which held that a man who had been born to Chinese parents in San Francisco thereby qualified as a citizen.
In Wong Kim Ark, the Court noted that the English tradition of citizenship by birth, which carried over to America, excluded the children of "foreign ambassadors" and the children of "alien enemies, born during and within their hostile occupation of part of the King's dominions." Parents in the first group enjoyed diplomatic immunity, so they were not fully "subject to the laws and authority" of the English government. Military invaders, likewise, were not bound to obey English law.
The justices recognized a third exception in the American context: "Children of members of the Indian tribes owing direct allegiance to their several tribes," which had quasi-sovereign status, likewise were not subject to U.S. jurisdiction within the meaning of the 14th Amendment. But apart from those three exceptions, the Court said, anyone born in the United States automatically becomes a U.S. citizen: "The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States."
The Court's explanation of the pragmatic considerations underlying the definition of jurisdiction incorporated into the 14th Amendnment is plainly at odds with Trump's restrictive reading. "When private individuals of one nation spread themselves through another as business or caprice may direct," the Court said, "it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country."
The Trump administration essentially argues that Wong Kim Ark does not mean what it says. The decision provides no basis for adding "primary allegiance" and "permanent domicile" to the requirements for birthright citizenship.
Wong Kim Ark does refer to "allegiance," but not in the exclusive sense that the government's lawyers favor. "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States," the Court said. "His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 'strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject.'"
The government's understanding of "domiciled," which excludes the children of unauthorized residents and temporary legal visitors, likewise "finds no basis in the text of the Citizenship Clause or its interpreting precedent," Gould writes. "The Wong Kim Ark Court uses the [word] 'permanent'…in connection with domicile [only] once, stating that although Wong Kim Ark's parents left the United States in 1890, they 'were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil[e] and residence therein at San Francisco.' This statement reflects the stipulated facts of the case, and the Court did not mention 'permanent' domicile in its interpretation of the Citizenship Clause."
Since Wong Kim Ark, Gould notes, "the Supreme Court has repeatedly recognized that the children of undocumented immigrants are citizens if born within the territory of the United States." The executive branch has echoed that broad understanding of birthright citizenship, he says, citing 19th-century statements by the secretary of state, decisions by the Board of Immigration Appeals, and opinions from the Justice Department's Office of Legal Counsel in the 1990s. Congress approved the Immigration and Nationality Act, which says "a person born in the United States" and "subject to the jurisdiction thereof" is a citizen, against that background. "A statute adopting language from another source generally conveys the original source's well-settled meaning," Gould notes.
Coughenour "correctly concluded that the Executive Order's proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional," Gould writes. "We fully agree. The Defendants' proposed interpretation of the
Citizenship Clause relies on a network of inferences that are unmoored from the
accepted legal principles of 1868….We reject this approach because it is contrary to the express language of the Citizenship Clause, the reasoning of Wong Kim Ark, Executive Branch practice for the past 125 years, [and] the legislative history to the extent that [it] should be considered, and because it is contrary to justice."
The Supreme Court may not agree with the 9th Circuit's rationale for issuing a nationwide injunction in this particular case. In Trump v. CASA, the justices left open the question of whether states have standing to challenge this order and, if so, what "complete relief" for them would entail. They also left open the crucial question of whether Trump's order is constitutional.
When the Supreme Court gets around to considering the latter question, it will be free to renounce the logic of Wong Kim Ark and subsequent decisions based on the principle it recognized. But no one should pretend that would not amount to a revolution in the Court's understanding of the 14th Amendment.
