A third federal judge on Feb. 10 blocked President Donald Trump’s birthright citizenship order from taking effect.
The federal government is looking to narrow the broad recognition of birthright citizenship to exclude children born to illegal immigrants and those only visiting the United States temporarily.
“I’m going to grant the injunction,” U.S. District Judge Joseph N. Laplante said at a Feb. 10 hearing in New Hampshire, siding with the plaintiff New Hampshire Indonesian Community Support, an immigrants’ rights advocacy group.
“I’m not persuaded by the defendant’s arguments in this case on this motion. Obviously, I’m not, I’m granting the injunction. But I have to say, I’m not offended by them either, as a lawyer or a jurist.
“I think the rule of law is best served, best maintained, and preserved when excellent practitioners present their arguments to the court with all the experience, knowledge, and expertise they can muster. And I think I’ve seen that in this case. It’s very much appreciated by the court.”
The Justice Department’s deputy assistant attorney general, Drew Ensign, argued that the United States “necessarily suffers harm any time that it’s forced to recognize ... someone as a citizen against its consent.”
Ensign also held that the court would be infringing on the nation’s sovereignty by dictating who the government must recognize as a citizen.
American Civil Liberties Union attorney Cody Wofsy, representing the plaintiff, said the judge should reject that argument.
“I just think it would be extremely detrimental to sort of foundational separation of powers to say that if the president ... is out here violating federal statutes, that’s something that courts have no power to reach,“ he said. ”That sort of basic principle is something that’s been recognized over and over and over again in all of these cases.”
The judge said he would file the order granting the injunction right away and then follow up with a more detailed explanation of his reasoning on Feb. 11.
The 14th Amendment states that “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.”
At issue is the phrase “and subject to the jurisdiction thereof,” a prerequisite that the federal government says does not apply to the children of unlawful entrants or those temporarily present on vacation or on student or work visas.
The U.S. Supreme Court ruled in 1898 in United States v. Wong Kim Ark that the only children who should not receive automatic citizenship were those born on foreign ships or those born to foreign diplomats, enemies present during a hostile occupation, or members of Native American tribes. Native Americans were later granted citizenship under the Indian Citizenship Act of 1924.
At least nine lawsuits have been filed challenging the new policy, which was initially slated to take effect on Feb. 19.
Laplante’s injunction follows two similar orders filed last week by judges in Seattle and Maryland.
“Citizenship by birth is an unequivocal constitutional right,” U.S. District Judge John Coughenour wrote in the Seattle case. “It is one of the precious principles that makes the United States the great nation that it is. The president cannot change, limit or qualify this constitutional right via an executive order.”
A judge in Boston heard arguments in another case last week but has yet to issue a ruling.
