Go, Judge!

This morning, John Coughenour, a federal judge in Seattle, put an end to Donald Trump’s pretense that he could undo the constitutional right to birthright citizenship. The Judge entered a nationwide injunction, temporarily prohibiting Trump from interfering with citizenship for people born in the United States, regardless of their parents’ citizenship status.

It’s Trump’s first loss in court, only four days into his new administration, and it’s an important one. The issue, also being litigated in other courts, is headed to the Supreme Court. I don’t expect a different result there. That will surprise some of you given how willing this Court has been to put its thumb on the scale of justice in Trump’s favor. But my assessment that Trump will lose isn’t based on a belief that anything has changed at the Court. Rather, it’s based on an understanding of how foundationally anchored birthright citizenship is in the Constitution and the 14th Amendment. In other words, it won’t be a sign that our confidence in the Court should be restored when they rule against Trump. The issue is so clear that it will simply be a reflection that there are some bars SCOTUS can’t fall below.

The meaning of the language in the 14th Amendment is plain. It says, “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.” Trump’s DOJ argued that somehow, the children it wants to strip of citizenship aren’t “subject to the jurisdiction” of the United States. The Judge asked DOJ’s lawyer whether those kids would be subject to the jurisdiction of the United States if they committed a crime. He responded that they were subject to the laws of this country, but not subject to the jurisdiction under the 14th Amendment.

That argument didn’t fly with the Judge, who interrupted to say, “Frankly I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind. Go ahead.” By the end of the hearing, there was little doubt about where the proceedings were headed. “I’d like to go back to your opinion about the constitutionality of this order,” Judge Coughenour said. “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. This is a blatantly unconstitutional order.”

The Judge entered a nationwide temporary injunction that will preserve the status quo and prevent the Trump administration from preparing to deprive people of citizenship, which has thrown systems nationwide into disarray (Trump’s executive order goes into effect on February 19), while the litigation proceeds. Injunctions are used to freeze the status quo in place when the party complaining about a new law can show a substantial chance of success on the merits, and that the harms done if the law is permitted to go into effect will be irreparable. The lawyer for the state attorneys general argued that state residents cross state borders routinely and that an order that only applied to the four states that brought this case wouldn’t fully protect its residents. The lawyer argued that “citizenship does not and cannot turn on state borders.”

The Judge ruled quickly. That’s how clearly wrong the Trump administration is on this issue.

I understand that as court adjourned, a woman in the back of the room yelled, “Go Judge.” She was speaking for all of us.

We’re in this together,

Joyce