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Stephen Dinan


NextImg:Trump on major losing streak on birthright citizenship

President Trump’s deadline for denying automatic birthright citizenship to children of illegal immigrants passed with barely a whimper last week as the policy remained snared in a web of court rulings — all of them against the president.

Legal analysts said Mr. Trump was tossing a Hail Mary pass with his attempt to change the law by executive order. So far, that has been the outcome.

At least 10 cases have challenged the policy. Four of those have reached preliminary rulings. Mr. Trump lost all four.



One has sped to an initial ruling in a federal appeals court. There, too, the president failed to prevail.

It hasn’t been a close call.

“Blatantly unconstitutional,” declared Judge John C. Coughenour, the first to rule on Mr. Trump’s executive order.

“I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear,” the Seattle-based judge said.

The challenges to Mr. Trump have been filed primarily in lower federal courts, which are seen as more liberal. Some conservatives hope for different results at the Supreme Court.

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Carl Tobias, a law professor at the University of Richmond, said that may be a false hope.

“It’s so clear that in the Constitution, and no court’s ever taken the position he’s taking,” Mr. Tobias said. “The Supreme Court may not even touch it.”

Mr. Trump’s order, issued on Inauguration Day, directed federal agencies not to recognize citizenship for any baby born to an illegal immigrant woman or a woman in the U.S. on a temporary pass as long as the father is also not a U.S. citizen or legal permanent resident.

The president declared those babies not to be “subject to the jurisdiction” of the U.S., which means they don’t qualify for automatic citizenship under the 14th Amendment.

Most legal scholars who have examined the question say he is wrong, and even some who agree with him say changing the policy would require an act of Congress, not a presidential order.

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Still, tricky legal questions abound in applying an amendment crafted after the Civil War and aimed at eradicating the legal underpinnings of chattel slavery to the complexities of modern migration.

The most critical question is what the amendment meant by limiting guaranteed citizenship to those under the “jurisdiction” of the U.S.

Some legal experts see a chance for Mr. Trump to turn around his losing streak.

Randy Barnett and Ilan Wurman, law professors at Georgetown University and the University of Minnesota, said the Supreme Court has never explicitly ruled on the types of cases Mr. Trump is addressing.

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In an 1898 decision, United States v. Wong Kim Ark, the Supreme Court found that children born to parents domiciled in the U.S. had automatic citizenship. Still, the court said it was not the same as citizenship for temporary visitors or illegal immigrants.

“When they finally consider this question, the justices will find that the case for Mr. Trump’s order is stronger than his critics realize,” Mr. Barnett and Mr. Wurman wrote in an op-ed in The New York Times.

They argued that the amendment is less about the soil where a baby is born and more about whether the family is part of a society’s general social compact.

That’s why the courts have recognized exceptions to automatic citizenship in cases of a child born to a foreign ambassador, born to foreign parents on a foreign vessel in U.S. waters, or born to an enemy soldier occupying U.S. land. Congress has since made exceptions regarding American Indian tribes.

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Congressional Republicans and Republican-led states have filed briefs backing Mr. Trump’s position.

They argue that illegal immigrants aren’t under the jurisdiction of the U.S. because they don’t owe allegiance to it and don’t have explicit permission to be part of it.

The district courts have disagreed, saying the 127-year-old Wong Kim Ark ruling applies even in cases involving babies born to illegal immigrants.

“They are children whose citizenship by birth has been recognized in this country since the ratification of the Fourteenth Amendment,” wrote Judge Deborah L. Boardman, who sits in Maryland. “The president does not have the authority to strip them of their constitutional right to citizenship by birth.”

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In another case, U.S. District Judge Joseph N. Laplante said the 14th Amendment’s traditional interpretation would mean illegal immigrants are covered.

Still, he made clear that the matter is headed to the Supreme Court.

“The ultimate lawfulness of the executive order will surely be determined by the Supreme Court,” wrote Judge Laplante, who sits in New Hampshire. “This is as it should be.”

The Justice Department is speeding its appeals.

The 9th U.S. Circuit Court of Appeals refused to stay Judge Coughenour’s decision.

The three-judge panel said Mr. Trump had not made a strong case that he was “likely to succeed” with his arguments.

Judge Danielle J. Forrest, a Trump appointee, said not to read much into the decision. She said the issue before the court was whether it was right to rush Mr. Trump’s policy into effect.

She said she didn’t see the need for speed.

“A controversy, yes. Even an important controversy, yes. An emergency, not necessarily,” she said. “We must make decisions based on reasoned judgment, not gut reaction. And this requires understanding the facts, the arguments, and the law, and how they fit together.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.