President Trump’s bold attempt to take away from thousands of newborn children one of the most basic rights guaranteed by the U.S. Constitution – the right to citizenship at birth — failed completely on Wednesday night in its first significant test in a federal court.
A jurist in the Maryland suburb of Greenbelt, U.S. District Judge Deborah L. Boardman, swept aside every claim that the new Trump Administration’s lawyers had made to support a presidential order to deny citizenship to babies who will be born to parents who are in the country without legal permission or are here only temporarily as students, tourists or workers.
The judge’s 32-page opinion, barring enforcement of that Executive Order anywhere in the nation, will undoubtedly be challenged by the Trump Administration in higher courts. The order was set to go into effect on February 19, but Judge Boardman’ ruling – if the Administration obeys it – will keep the order on hold while she decides whether to strike it down and permanently bar it. Tuesday night’s ban was only temporary but still was binding.
“When the children described in the Executive Order are born,” the judge wrote, “they will be United States citizens under the Fourteenth Amendment and long-standing Supreme Court precedent. The President does not have the authority to strip them of their constitutional right to citizenship by birth.”
The opinion offered one of the fullest explorations of the modern meaning of an amendment put into the Constitution in 1868 and of a Supreme Court ruling in 1898 interpreting the right to become a citizenship at the moment of birth to parents living in the U.S., even if here only temporarily or here illegally.
The judge noted repeatedly that the only exceptions to that right are for babies born to foreign nations’ diplomats while they serve here, or born to parents who are “hostile occupants” of the place where they live such as enemy terrorists. She also pointed out that, although children born to parents in Indian tribes did not have the right at the time of the Fourteenth Amendment’s adoption, but were granted citizenship by act of Congress in 1924.
Trump’s order had been challenged in the Maryland court by five pregnant women whose coming births would be governed by the order. Two advocacy groups that seek to protect the rights of immigrants also sued. Other challenges are in early stages in courts elsewhere in the nation.
Although the lawsuit had made challenges based upon federal immigration laws, Judge Boardman ruled that the only way the childrens’ right would be fully protected was under the Constitution. The Trump Administration had contended that the women should try first to test the issue before government agencies, and then sue if they lost.
The judge also rejected these other arguments made by Administration lawyers:
• That the right to citizenship at birth only applies to foreign nationals who have actual legal residence in this country, and thus those who entered illegally or are here only temporarily do not qualify.
• That the right only applies to foreign nationals in this country who owe “unqualified allegiance” to the United States, and those who entered illegally or temporarily owe allegiance to their home countries.
In a particularly strong retort to the Trump order, Judge Boardman included in a footnote her rejection of a more aggressive argument in support of the Trump order: that illegal immigration has brought violence and national security risks to this country.
That is based on a theory that America has been “invaded” by the wave of illegal entries, and that supposedly means that “hostile occupants” are now living across the nation. The theory thus is that illegal entrants are excluded from the citizenship guarantee for their newborn children, under the traditional exception for enemy aliens.
The judge wrote that the exception means only those who have taken “firm possession of a territory that enables the occupant to exercise the fullest right of sovereignty over that place….This exception to citizenship by birth plainly does not apply to the children described in the Executive Order.”
The “invasion” theory has recently begun appearing in published articles and some judicial opinions as part of the attempts to narrow the protections given by the Fourteenth Amendment citizenship guarantee.
The Trump Administration now has two options to try to get Judge Boardman’s order overturned: it can file an appeal to the next higher court, the federal circuit court that has its headquarters in Richmond but includes Maryland cases in its jurisdiction, or it can take the dispute on to the Supreme Court either by bypassing the circuit court or waiting for a ruling there and then appeal to the highest court in Washington.
