A federal judge in New Hampshire granted a preliminary injunction Monday morning against an executive order signed by President Donald Trump that would end birthright citizenship for the children of some immigrants.
Trump’s order – one of several he signed in the first hours of his second term – directs federal agencies to not issue citizenship documents to babies born to undocumented immigrants or parents with lawful but temporary status, starting Feb. 19.
Plaintiffs for this case, which include New Hampshire Indonesian Community Support and two other non-profits, said members in their communities have soon-to-be born babies who would be directly affected if the order moves forward.
The court order from Judge Joseph Laplante said that the plaintiffs are likely to suffer irreparable harm if the executive order stands. He added that the potential harm to the plaintiffs outweighs the potential harm to the defendants if the order is granted – especially since the court order essentially keeps the current rules on issuing citizenship documents to newborns.
Even though a more complete order from Laplante is forthcoming, he said that both parties argued the case well.
“As a lawyer and 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 and knowledge they can muster,” he said after granting the injunction.
Other courts in Washington and Maryland have also granted preliminary injunctions against the executive order.
The executive order focuses on one clause of the 14th Amendment in particular that says that citizenship applies to babies born in the U.S. and “subject to the jurisdiction” of the United States.
Cody Wofsy from the American Civil Liberties Union spoke on behalf of the plaintiffs. He centered many of his arguments around a 1898 Supreme Court Case involving Wong Kim Ark, a Chinese-American cook from San Francisco. In a landmark decision, the Supreme Court confirmed that children born in the United States of noncitizen parents are citizens under the 14th Amendment.
Wofsy argued that Wong Kim Ark makes a clear case for granting citizenship to all babies born in the U.S. – regardless of their parents’ nationality. He pointed to more than a century of legal precedence that has upheld that the 14th Amendment grants unrestricted citizenship to every child born in the United States.
He added that Trump’s executive order awas a “radical vision of executive supremacy” that overruled interpretations of the 14th Amendment by congress.
“Today’s ruling is the latest rebuke of President Trump’s wildly unconstitutional bid to end birthright citizenship,” he said in a statement following the hearing. “This attempt to deny babies their citizenship is as illegal as it is inhumane, and we will keep fighting until we stop this order for good.”
Deputy Assistant Attorney General Drew Ensign represented the defendants. Many of his arguments centered around Elk v. Wilkins, an 1884 Supreme Court case that decided that John Elk was not a U.S. citizen and could not vote because he was born on a reservation belonging to the Ho-Chunk nation.
Ensign argued that the Elk case is still good law and raises questions about the sovereignty of the United States. He said that undocumented immigrants and temporary visitors owed allegiance to other states and their children should not be eligible for citizenship.
