First Circuit Rules Trump’s Birthright Citizenship Executive Order is Unconstitutional

Yesterday, the US Court of Appeals for the First Circuit issued a decision that Donald Trump’s executive order denying birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas is unconstitutional. It also ruled that it violates a 1952 law granting naturalization to children born in the United States, and upheld a nationwide injunction against implementation of the order. This is the second appellate court decision ruling against Trump’s order, following an earlier Ninth Circuit decision. Multiple district court judges (including both Democratic and Republican appointees) have also ruled that the order is illegal, and so far not a single judge has voted to uphold it.

Judge David Barron’s opinion for the First Circuit runs to 100 pages. But he emphasizes that this length is the product of the large number of issues (including several procedural ones) that had to be considered, and does not mean the case is a close one:

The analysis that follows is necessarily lengthy, as we must address the parties’ numerous arguments in each of the cases involved. But the length of our analysis should not be mistaken for a sign that the fundamental question that these cases raise about the scope of birthright citizenship is a difficult one. It is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright.

I won’t try go to through all the points in the decision in detail. But I think Judge Barron’s reasoning is compelling and persuasive, particularly when it comes to explaining why this result is required under the Supreme Court’s ruling in the 1898 Wong Kim Ark case, and why the 1952 naturalization statute provides an independent ground for rejecting Trump’s order.

I would add, as I have noted previously (e.g. here and here), that virtually all the government’s arguments for denying birthright citizenship to children of undocumented immigrants and those on temporary visas would also have denied it to numerous slaves freed as a result of the Civil War and the Thirteenth Amendment. For example, if children of people who entered the US illegally are ineligible, that would exclude the children of many thousands of slaves who were brought into the US illegally after Congress banned the slave trade in 1808. And granting citizenship to freed slaves and their children was, of course, the main purpose of the Citizenship Clause of the Fourteenth Amendment.

I also think the ruling is sound in concluding that the state government plaintiffs in the case have standing to sue (though, admittedly, the Supreme Court’s precedents on state standing are far from a model of clarity), and in suggesting that “complete relief” for their injuries requires a nationwide injunction (though it ultimately remanded this issue to the district court for further consideration). State lawsuits are one of several possible exceptions to the Supreme Court’s general presumption against nationwide injunctions in Trump v. CASA, Inc. Both this exception and that for class actions have been used in lower court decisions against the birthright citizenship order, since Trump v. CASA came down in June. These exceptions are among the reasons why CASA has so far not had anywhere near as devastating an impact as some feared (though I continue to believe it was a bad decision).

Both the substantive birthright citizenship issue and the procedural issue of the proper scope of injunctions are likely to return to the Supreme Court. Hopefully, the justices will affirm the lower court rulings on these issues. We shall see.