A federal judge in New Hampshire issued a ruling Thursday prohibiting President Donald Trump’s executive order ending birthright citizenship from taking effect anywhere in the U.S.
Judge Joseph LaPlante issued a preliminary injunction blocking Trump's order and certified a class action lawsuit including all children who will be affected. The order, which followed an hour-long hearing, included a seven-day stay to allow for appeal.
The judge’s decision puts the birthright citizenship issue on a fast track to return to the Supreme Court. The justices could be asked to rule whether the order complies with their decision last month that limited judges’ authority to issue nationwide injunctions. The Supreme Court said district judges generally can’t issue nationwide, or universal, injunctions. But it didn’t rule out whether judges could accomplish much the same thing by a different legal means, a class action.
The class approved in New Hampshire is slightly narrower than that sought by the plaintiffs, who wanted to include parents, but attorneys said that wouldn't make a material difference.
“This is going to protect every single child around the country from this lawless, unconstitutional and cruel executive order,” said Cody Wofsy, an attorney for the plaintiffs.
The lawsuit was filed on behalf of a pregnant woman, two parents and their infants. It's among numerous cases challenging Trump’s January order denying citizenship to those born to parents living in the U.S. illegally or temporarily. The plaintiffs are represented by the American Civil Liberties Union and others.
At issue is the Constitution’s 14th Amendment, which states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” The Trump administration says the phrase “subject to the jurisdiction thereof” means the U.S. can deny citizenship to babies born to women in the country illegally, ending what has been seen as an intrinsic part of U.S. law for more than a century.
“Prior misimpressions of the citizenship clause have created a perverse incentive for illegal immigration that has negatively impacted this country’s sovereignty, national security, and economic stability,” government lawyers wrote in the New Hampshire case.
LaPlante, who had issued a narrow injunction in a similar case, said while he didn’t consider the government’s arguments frivolous, he found them unpersuasive. He said his decision to issue an injunction was “not a close call” and that deprivation of U.S. citizenship clearly amounted to irreparable harm.
“That’s irreparable harm, citizenship alone,” said LaPlante. “It is the greatest privilege that exists in the world.”
White House spokesman Harrison Fields accused LaPlante, who was appointed by Republican President George W. Bush, of “abusing class action procedures.”
“The Trump Administration will be fighting vigorously against the attempts of these rogue district court judges to impede the policies President Trump was elected to implement,” he said in a statement.
During Thursday’s hearing, Deputy Assistant Attorney General Eric Hamilton argued that both approving a class action and issuing an injunction would be premature, given that no one other than Trump has taken action. He said doing so would mean a single court could become the “end-all-and-be-all” in reversing new federal policies and said if anything, the injunction should be limited to New Hampshire.
Similar cases are pending from Washington to Maryland. It’s not time to panic, said Ama Frimpong, legal director at nonprofit immigrant rights organization CASA, which is also seeking a nationwide injunction.
“No one has to move states right this instant,” she said. “There’s different avenues through which we are all fighting, again, to make sure that this executive order never actually sees the light of day.”
Dan Eaton, a legal analyst from San Diego, said the New Hampshire injunction is no surprise, given the multiple lawsuits filed against President Trump’s executive order and a Supreme Court ruling last month.
"What the Supreme Court held in its recent landmark ruling was that federal district judges couldn't issue what are called universal injunctions that extend beyond the people who brought the lawsuit," Eaton said. "This is one of several lawsuits that were brought."
But Eaton says the other suits could create a clash between the Circuit Courts.
"That dispute has to be resolved by the U.S. Supreme Court. That's the bread and butter of the U.S. Supreme Court's docket, resolving conflicts among the lower Federal Courts of Appeal," he said.
Eaton thinks the focus going forward will be on the merits of the birthright citizenship executive order, and "whether that executive order is consistent with the 14th Amendment of the United States Constitution. That's an open question, as far as the Supreme Court is concerned," Eaton said.
The New Hampshire plaintiffs, referred to only by pseudonyms, include a woman from Honduras who has a pending asylum application and is due to give birth to her fourth child in October. She told the court the family came to the U.S. after being targeted by gangs.
“I do not want my child to live in fear and hiding. I do not want my child to be a target for immigration enforcement,” she wrote. “I fear our family could be at risk of separation.”
Another plaintiff, a man from Brazil, has lived with his wife in Florida for five years. Their first child was born in March, and they are in the process of applying for lawful permanent status based on family ties — his wife's father is a U.S. citizen.
“My baby has the right to citizenship and a future in the United States,” he wrote.
