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A three-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday declined the Justice Department’s request to immediately reinstate President Donald Trump’s executive order limiting birthright citizenship. The ruling sets the stage for a potential emergency appeal to the Supreme Court.
Conflict with the Fourteenth Amendment
Legal experts have pointed out that Trump’s executive order conflicts with the Fourteenth Amendment, which grants U.S. citizenship to anyone born on American soil. The order sought to deny citizenship to children born in the United States if their mothers were unlawfully present and their fathers were neither U.S. citizens nor lawful permanent residents.
The Justice Department had petitioned the 9th Circuit for an emergency stay to overturn a lower court’s decision that blocked Trump’s order from taking effect. However, the panel ruled against the request, finding that the Justice Department had not made a “strong showing” that it was likely to succeed on the merits of the appeal.
Judge Forrest Questions the Definition of an ‘Emergency’ in Birthright Citizenship Order
Judge Danielle Forrest, appointed by Trump, issued a concurring opinion that took issue with the Justice Department’s characterization of the situation as an emergency.
“It is routine for both executive and legislative policies to be challenged in court, particularly where a new policy is a significant shift from prior understanding and practice,” Forrest wrote. “And just because a district court grants preliminary relief halting a policy advanced by one of the political branches does not in and of itself an emergency make. A controversy, yes. Even an important controversy, yes. An emergency, not necessarily.”
The case before the San Francisco-based appeals court is one of several legal challenges to the policy and the first to be considered by an appellate panel.
Justice Department Defends Birthright Citizenship Order
In its filings, the Justice Department argued that Trump’s birthright citizenship executive order was “an integral part of President Trump’s broader effort to repair the United States’ immigration system and to address the ongoing crisis at the southern border.”
For over a century, U.S. citizenship has been granted to anyone born on American soil under an 1868 constitutional amendment and a preceding federal statute, regardless of their parents’ immigration status. Trump’s order seeks to end this practice for children whose parents are either undocumented or in the U.S. on temporary visas.
Lawsuit from Democratic Attorneys General
The 9th Circuit case stems from a lawsuit filed by Democratic attorneys general from four states, led by Washington. Their filings pushed back against the Justice Department’s assertion that the case centered on a president’s immigration powers.
“This is not a case about ‘immigration,’” the attorneys general wrote. “It is about citizenship rights that the Fourteenth Amendment and federal statute intentionally and explicitly place beyond the President’s authority to condition or deny.”
The majority of the 9th Circuit panel concluded that the Trump administration had failed at this stage because it had not demonstrated a likelihood of success on the merits of the case.
Case Likely to Esclate to Supreme Court
Judge Forrest emphasized in her concurrence that she was not expressing a view on the broader legal issues. Instead, she sided against the administration because it had not sufficiently proven that an immediate court intervention was necessary.
“Deciding important substantive issues on one week’s notice turns our usual decision-making process on its head,” Forrest wrote. “We should not undertake this task unless the circumstances dictate that we must. They do not here.”
The case now awaits further legal proceedings, with the possibility of escalating to the Supreme Court.
