Multiple lawsuits challenge Trump's order restricting birthright citizenship
A hearing in a lawsuit filed in Seattle is set for Thursday morning, one of at least five cases already filed across the country challenging the executive order.
Two groups of Democratic state attorneys general, representing 22 states, along with Washington, D.C., and San Francisco, filed lawsuits Tuesday challenging President Donald Trump’s executive order aimed at restricting birthright citizenship.
U.S. District Judge John Coughenour, an 83-year-old named to the federal bench in Seattle in Ronald Reagan’s first year as president, has set a hearing for Thursday in one of those cases that could lead to the executive order being placed on hold. The hearing comes in a case filed on behalf of four states, led by Washington Attorney General Nick Brown.
Those two lawsuits followed two others lawsuits filed on Monday night — one by the ACLU on behalf of groups representing immigrant communities and the other by Lawyers for Civil Rights1 on behalf of a pregnant woman and two groups supporting immigrant communities. A fifth lawsuit — filed on behalf of other immigrant groups, as well as five pregnant women — also was filed Tuesday.
Despite minor differences between the lawsuits, all filed in federal courts in four different states across three different circuits, they are expected to move quickly due to the fact that the new restrictions on citizenship that Trump unilaterally declared are set to apply to anyone born in the United States 30 days from Monday.
The executive order, issued on Monday and covered on Tuesday morning at Law Dork, was the subject of sharp criticism before it was even issued. Legal experts detailed the problems with such an order when Trump raised it as a campaign issue, to no avail, so they raised their problems again on Monday when he signed the order. It declares, in part:
The problem with this is its clear disregard for the protections of the Fourteenth Amendment, which states in relevant part, “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.” This is further backed up by federal law.
While Trump defended the order when questioned about it by reporters on Monday in the Oval Office as he signed it, he acknowledged a challenge could be coming.
And so it did. Followed by others.
The ACLU’s lawsuit — brought on behalf of New Hampshire Indonesian Community Support, the League of United Latin American Citizens, and Make the Road New York — alleged, “The Order straightforwardly violates the Citizenship Clause [of the Fourteenth Amendment], as well as the birthright citizenship statute, and should be enjoined.“ Specifically, it laid out in two paragraphs the fundamental constitutional reality that Trump’s order ignores:
On Tuesday, the ACLU filed a motion for a preliminary injunction, asking the federal court in New Hampshire to block the Trump administration from enforcing the order while litigation is ongoing. In the accompanying legal brief, the ACLU lawyers referenced that 1898 case, writing:
Over 125 years ago, the Supreme Court emphatically rejected the last effort to undercut birthright citizenship in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Since then, even through countless immigration debates, the birthright citizenship principle has remained undisturbed constitutional bedrock and prevented the emergence of a hereditary underclass excluded from full participation in American life.
Until now. Flouting the Constitution’s requirements, congressional direction, and longstanding Supreme Court precedent, Defendants attempt to upend one of the most fundamental American constitutional values by denying citizenship to babies based on their parents’ lack of permanent immigration status.
The case was assigned to U.S. District Judge Joseph Laplante, a George W. Bush appointee.
The Lawyers for Civil Rights lawsuit was filed in Massachusetts and highlighted some of the harms that would come from the order, should it go into effect:
The practical impact of the EO would be overwhelming and devastating. The Supreme Court has repeatedly observed that U.S. citizenship carries with it such “priceless benefits” that “it would be difficult to exaggerate its value and importance.” Schneiderman v. United States, 320 U.S. 118, 122 (1943). If the EO is allowed to go into effect, American citizens would be denied passports, leaving them unable to travel outside the country for fear of never being allowed re-entry; denied Social Security numbers and cards, hampering their ability to work without government permission; and prevented from exercising countless federal rights, protections, benefits, and entitlements that derive from U.S. citizenship.
The case was assigned to U.S. District Judge Leo Sorokin, an Obama appointee.
In the first of the two multistate cases, New Jersey Attorney General Matthew Platkin and Massachusetts Attorney General Andrea Campbell led an 18-state coalition, as well as Washington, D.C. and the city and county of San Francisco in a challenge filed in federal court in Massachusetts.
They filed a motion for a preliminary injunction and sought an expedited briefing, to be completed January 31. In discussing their likelihood of success — one of the questions a judge considers in deciding whether to grant a preliminary injunction — in the accompanying legal brief, the lawyers argued:
Plaintiffs are exceptionally likely to succeed on their claims that the Order contravenes the Constitution and a series of federal statutes, including the Immigration and Nationality Act (INA), and that any actions an executive agency takes to implement it would violate the APA [Administrative Procedure Act]. … The President’s decision to eliminate birthright citizenship contravenes the plain text of the Fourteenth Amendment, directly on-point Supreme Court decisions, centuries of history and practice, and a decades-old federal statute.
The case was assigned to Sorokin, as the case was marked as “related” to the case filed on Monday by Lawyers for Civil Rights.
Then, there is the Seattle case. Washington’s Brown led a four-state coalition filing a similar lawsuit in the federal court for the Western District of Washington. In their case, they are looking for a quick ruling in a slightly different way, asking the court to “[t]emporarily restrain and enjoin Defendants from implementing or enforcing the Citizenship Stripping Order, pending further orders from this Court.“
A temporary restraining order (TRO) can be issued more quickly, and is generally not appealable because it is to be of a limited time — hence, temporary — until the court can consider whether to issue a more lasting order, like a preliminary injunction, that can be appealed. At the same time, however, because of the stark nature of a TRO, a person seeking it must show they are facing immediate and irreparable injury if a TRO is not issued.
To that end, the complaint noted at one point how “[t]he Citizenship Stripping Order will immediately begin to upend administrative and operational processes within the Plaintiff States.” Expect more discussion in the coming days of how this order will force states to begin preparing for the implementation even though Section 2(a) of the order itself does not take effect for 30 days.
The states filed their motion for a TRO on Tuesday as well, the case was assigned to Coughenour, and he set a hearing on the TRO request for 10 a.m. Pacific Time Thursday.
Finally, the second case filed on behalf of immigrant groups was filed in federal court in Maryland on Tuesday. The lawsuit also named five pregnant women as plaintiffs. They are seeking a TRO and preliminary injunction.
The lawsuit was assigned to U.S. District Judge Deborah Boardman, a Biden appointee.
In their legal brief supporting the request, the lawyers from CASA, Asylum Seeker Advocacy Project, and the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown Law argued, in discussing the question of irreparable harm consider by judges in deciding whether to grant a preliminary injunction:
The lack of clarity in the Executive Order about the status of children born after the Order takes effect and the uncertainty about how the Order will be implemented have engendered widespread confusion and fear, which causes Members additional irreparable harm. Those who are currently pregnant now face a world in which the citizenship status of their unborn children has been thrown into doubt, undermining the plans they have made for those children and for their families more broadly.
The lawyers went on to argue that “[s]ome mothers … may be driven by the Executive Order to induce labor or schedule a cesarean section before the effective date, risk harm to their health and the health of their baby.”
Information about this case was added to this report at 12:50 p.m. Wednesday.
Can you talk about whether any of these plaintiffs can really establish standing.? I was assuming that a lawsuit would need to wait until a baby was born after the effective date of the order and that baby’s request for documentation of citizenship was denied.
Chris,
Your zealous understanding of the federal filings against 34's EOs is amazing and your writing rushes the reader to the next contiguous filing igniting suspense. I hope there is a book somewhere in your future. Peace. We are in this together.