Appeals court leaves block on Trump’s birthright citizenship order in place, setting up Supreme Court showdown
An appeals court will not allow the Trump administration to end birthright citizenship for certain children of immigrants, in a ruling that could propel the issue to the Supreme Court.
The 9th US Circuit Court of Appeals on Wednesday declined an emergency Justice Department request that it lift the hold a Seattle judge had placed blocking implementation of President Donald Trump’s executive order, after concluding the order ran afoul of the Constitution.
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The 9th Circuit panel – made up of a Trump appointee, a Jimmy Carter appointee and a George W. Bush appointee – said that a closer review of the case will move forward in its court, with arguments slated for June.
The case before the San Francisco-based appeals court is one of several major legal challenges to the policy and the first to get the weigh-in by an appellate panel.
In filings, the Justice Department said that the birthright citizenship executive order was “an integral part of President Trump’s broader effort to repair the United States’ immigration system and to address the ongoing crisis at the southern border.”
For decades, under an 1868 constitutional amendment and a statute that preceded it, citizenship has been extended to anyone born on US soil, regardless of the immigration status of their parents. Trump is seeking to end birthright citizenship for children whose parents are either undocumented or are lawfully present in the United States on temporary visas.
The 9th Circuit case arose from a lawsuit filed by the Democratic attorneys general of four states led by Washington. Their filings pushed back on the DOJ’s efforts to frame the dispute around a president’s powers in the immigration sphere.
“This is not a case about ‘immigration,” they wrote. “It is about citizenship rights that the Fourteenth Amendment and federal statute intentionally and explicitly place beyond the President’s authority to condition or deny.”
The majority of the 9th Circuit panel indicated that the Trump administration had failed at this emergency phase because it had not shown it that it was likely to succeed on the merits of the dispute.
Judge Danielle Forrest, a Trump appointee, wrote a concurrence stating that she was not expressing any views on the underlying legal arguments, and that instead she had voted against the Trump administration because it had not shown that there was an “emergency” requiring an immediate intervention of the court.
“Deciding important substantive issues on one week’s notice turns our usual decision-making process on its head,” she wrote. “We should not undertake this task unless the circumstances dictate that we must. They do not here.”
This story has been updated with additional details.
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The Court of Appeals said a closer review of the case will move forward in June.
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The Ninth Circuit Court of Appeals said a closer review of the case will move forward in its court, with arguments slated for June.
In a concurring decision, Judge Danielle Jo Forrest — who Trump nominated to the Ninth Circuit in 2019 — defended the court’s decision to deny the request for an emergency stay, arguing that rushing the decision birthright citizenship risks “eroding public confidence” at a critical moment in the country’s history.
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Appeals court declines to reinstate Trump’s birthright citizenship order
Appeals court declines to reinstate Trump’s birthright citizenship order
A three-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday declined the Justice Department’s request to immediately reinstate President Donald Trump’s executive order limiting birthright citizenship, setting up a potential emergency application to the Supreme Court.
Legal experts have said Trump’s order conflicted with the Fourteenth Amendment, which extends American citizenship to anyone born on U.S. soil, by denying citizenship to future children born in the United States if their mothers were unlawfully present in the country and their fathers were not citizens or permanent residents.
The Justice Department had asked the 9th Circuit to grant an emergency stay of a lower court’s decision blocking Trump’s order from going into effect.
In denying the request, the panel found the Justice Department had not made a “strong showing that they are likely to succeed on the merits of this appeal.”
One member of the panel, Trump-appointed Judge Danielle Forrest, expanded on her reasoning in a concurring opinion, taking issue with the Justice Department’s characterization of an emergency.
“It is routine for both executive and legislative policies to be challenged in court, particularly where a new policy is a significant shift from prior understanding and practice,” she wrote. “And just because a district court grants preliminary relief halting a policy advanced by one of the political branches does not in and of itself an emergency make. A controversy, yes. Even an important controversy, yes. An emergency, not necessarily.”
Daniel Barnes reports for NBC News, based in Washington.
Nnamdi Egwuonwu is a 2024 NBC News campaign embed.
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