SEATTLE — Federal appeals court judges in Seattle on Wednesday questioned a Trump administration lawyer and Washington’s solicitor general over the president’s executive order restricting birthright citizenship.
The three-judge panel in the 9th U.S. Circuit Court of Appeals appeared more open to the Trump administration’s arguments than a federal judge in Seattle who in January called the order “blatantly unconstitutional.”
Perhaps the most pointed question came after a lengthy back-and-forth over what the writers of the 14th Amendment meant when they enshrined birthright citizenship into the U.S. Constitution.
Hawkins asked Department of Justice attorney Eric McArthur, who clerked for conservative U.S. Supreme Court Justice Clarence Thomas, what the late Justice Antonin Scalia would think of his arguments. Scalia, an ardent originalist, anchored the Supreme Court’s conservative wing alongside Thomas.
“He was widely critical of looking at congressional history and statements of senators opposing or supporting a particular thing, and famously said ‘just the words,’” said Hawkins, a Clinton appointee.
McArthur said he thought Scalia would have been “very open to looking at all of the historic evidence.”
After McCarthur’s arguments, Hawkins told the Justice Department attorney he did a “terrific job.”
Trump’s executive action, signed on the first day of his second term, aims to end birthright citizenship for babies born to a mother and father who are not U.S. citizens or lawful permanent residents. Since the aftermath of the Civil War, the country has automatically given citizenship to babies born on U.S. soil, no matter their immigration status.
Wednesday was the first time the merits of Trump’s order have come before a federal appeals court.
The arguments from Washington’s solicitor general, the Northwest Immigrant Rights Project and McArthur come a few weeks after the U.S. Supreme Court took up Washington’s case on birthright citizenship and others.
The justices focused on whether preliminary injunctions, like the one from Judge John Coughenor in Seattle at the center of Wednesday’s hearing, should affect only the parties involved in a particular case or can be applied nationwide. The Trump administration contends such orders are judicial overreach.
The Supreme Court’s ruling-to-come could have implications far beyond the birthright citizenship case, potentially staunching the flow of temporary nationwide blocks that state attorneys general are relying on to stop what they see as the president’s unlawful actions.
In their May 15 hearing, the justices appeared wary of allowing different rules by state.
On Wednesday, state Solicitor General Noah Purcell called Trump’s executive order on birthright citizenship “unconstitutional and unAmerican.”
“President Trump seeks to turn citizenship into a political football, denying that precious right to hundreds of thousands of babies born in this country simply because their parents are here to work, to study or to escape persecution or violence,” said Purcell, who argued successfully against the president’s travel ban in court in 2017.
As is customary, the 9th Circuit judges didn’t rule from the bench Wednesday. They’ll issue a written ruling in the coming weeks or months. Both sides told the judges it may be prudent to first wait for the Supreme Court to weigh in on the nationwide injunction question.
Former President Bill Clinton, a Democrat, appointed two of the three judges who oversaw Wednesday’s hearing. The other is a Trump appointee from the president’s first term.
Several other cases are currently awaiting similar appellate hearings after lower courts awarded preliminary injunctions. The Supreme Court will likely have the final say on the merits of Trump’s order.
Speaking to reporters after the Wednesday morning hearing, Washington Attorney General Nick Brown said “the judges had a lot of pointed and difficult questions for both sides to grapple with.”
Still, he said he is “really confident moving forward that this court, and ultimately the Supreme Court, will rule in the states’ favors.”
Longstanding precedent
The 14th Amendment to the U.S. Constitution codified birthright citizenship in 1868.
The amendment begins: “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.”
Trump’s order, initially set to take effect Feb. 19, focused on the “subject to the jurisdiction thereof” phrase.
“The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” Trump’s executive order reads. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”
Legal precedent, including an 1898 U.S. Supreme Court ruling, has long upheld birthright citizenship. That case dealt with a man born in San Francisco to Chinese parents named Wong King Ark. The justices ruled he was a U.S. citizen.
The two sides interpret this case differently. Much of Wednesday’s arguments centered the Wong Kim Ark decision.
McArthur noted the Supreme Court ruled “every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” He focuses on the word “domiciled,” arguing those here temporarily or without legal status don’t fall under that umbrella.
Matt Adams, legal director of the Northwest Immigrant Rights Project, countered by reading further from the Supreme Court decision.
“His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory,” the justices continued in their Wong Kim Ark ruling, arguing that he is “as much a citizen as the natural-born child of a citizen.”
Washington’s case against Trump’s birthright citizenship order, filed alongside Oregon, Arizona and Illinois, led to the second Trump administration’s first judicial rebuke.
The Reagan-appointed judge, Coughenour, later agreed to indefinitely block Trump’s order while the case played out in court. Trump’s Department of Justice appealed, leading to Wednesday’s hearing.
Two pregnant noncitizen women joined the states’ litigation, fearful their children could be born stateless. One has since given birth to a baby born a U.S. citizen because of court action, said Matt Adams, legal director of the Northwest Immigrant Rights Project.
In 2022, about 153,000 babies across the country were born to two parents without legal immigration status, including 4,000 in Washington, according to the plaintiffs. The states have said they stand to lose federal funding through programs like Medicaid that otherwise could help these children if they were citizens.
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