By Nate Raymond
(Reuters) -U.S. President Donald Trump’s order restricting birthright citizenship appeared on Friday to be headed toward being declared unconstitutional by a second federal appeals court, as judges expressed deep skepticism about a key piece of his hardline immigration agenda.
A three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals sharply questioned a lawyer with the U.S. Department of Justice as to why they should overturn two lower-court judges who blocked the order from taking effect.
Those lower-court judges include one in Boston who last week reaffirmed his prior decision to block the order’s enforcement nationally, even after the U.S. Supreme Court in June curbed the power of judges to broadly enjoin that and other policies.
The San Francisco-based 9th U.S. Circuit Court of Appeals last week became the first federal appeals court to hold Trump’s order is unconstitutional. Its ultimate fate will likely be determined by the U.S. Supreme Court.
Justice Department attorney Eric McArthur said on Friday that the citizenship clause of the U.S. Constitution’s 14th Amendment, which was ratified in 1868 after the U.S. Civil War, rightly extended citizenship to the children of newly-freed enslaved Black people.
“It did not extend birthright citizenship as a matter of constitutional right to the children of aliens who are present in the country temporarily or unlawfully,” he said.
But the judges questioned how that argument was consistent with the Supreme Court’s 1898 ruling interpreting the clause in United States v. Wong Kim Ark, long understood as guaranteeing American citizenship to children born in the U.S. to non-citizen parents.
“We have an opinion by the Supreme Court that we aren’t free to disregard,” said Chief U.S. Circuit Judge David Barron, who like his two colleagues was appointed by a Democratic president.
Trump’s executive order, issued on his first day back in office on January 20, directs agencies to refuse to recognize the citizenship of U.S.-born children who do not have at least one parent who is an American citizen or lawful permanent resident, also known as a “green card” holder.
Every court to consider the order’s merits has declared it unconstitutional, including the three judges who halted the order’s enforcement nationally. Those judges included U.S. District Judge Leo Sorokin in Boston, who ruled in favor of 18 Democratic-led states and the District of Columbia, who had swiftly challenged Trump’s policy in court.
“The Supreme Court has repeatedly recognized children born to individuals who are here unlawfully or who are here on a temporary basis are nonetheless birthright citizens,” Shankar Duraiswamy, a lawyer for New Jersey, argued on Friday.
The 6-3 conservative majority U.S. Supreme Court on June 27 sided with the administration in the litigation by restricting the ability of judges to issue so-called universal injunctions and directing lower courts that had blocked Trump’s policy nationally to reconsider the scope of their orders.
But the ruling contained exceptions, allowing federal judges in Massachusetts and New Hampshire and the 9th Circuit to issue new decisions stopping Trump’s order from taking effect nationally.
The rulings on appeal to the 1st Circuit were issued by Sorokin and the New Hampshire judge, who originally issued a narrow injunction but more recently issued a new decision in a recently-filed class action blocking Trump’s order nationwide.
(Reporting by Nate Raymond in Boston; Editing by David Gregorio)
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