In Seattle, appeals court grapples with Trump birthright citizenship order

A three-judge panel of a federal appeals court in Seattle seemed conflicted Wednesday about the constitutionality of President Donald Trump’s order to end birthright citizenship – the idea, recognized by the courts, presidents and Congress for at least 160 years, that every person born in America is an American citizen.

The judges – two appointed by former President Bill Clinton and one appointed by President Donald Trump – asked probing questions of both sides, but ultimately did not tip their hand.

The atmosphere in the downtown Seattle courtroom was far different from several months ago at a courtroom just a few blocks away, where a federal judge almost immediately called Trump’s executive order “blatantly unconstitutional.”

The dispute over birthright citizenship arrives at the U.S. Court of Appeals for the Ninth Circuit as other aspects of the case are already under consideration by the U.S. Supreme Court. But the Supreme Court is, at the moment, considering procedural issues, not the blunter question of whether Trump’s actions are constitutional.

The constitutional issues will almost certainly end up at the Supreme Court as well, regardless of what the appeals court decides. And two other courts have also blocked Trump’s order nationwide, so a ruling in Trump’s favor at the Ninth Circuit would not automatically put his order into effect.

“We always see more thorough debates at the circuit court level,” Attorney General Nick Brown said after the hearing, when asked about the different tenor of the arguments compared to those at the lower court. “That sort of healthy debate on the merits is expected, anticipated, and a function at the core of our democracy.”

Trump, on his first day in office, issued an executive order rescinding birthright citizenship, which has been in place at least since 1865 and the adoption of the 14th Amendment to the Constitution.

That amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

For well over a century, courts have taken that to mean that anyone born in the U.S. – with very limited exceptions like the children of invading soldiers or the children of foreign diplomats – is an American citizen.

“Its operation is automatic and its scope broad,” Brown, who sued to block Trump’s order the day after the president issued it, wrote in the state’s brief to the appeals court. “It provides our Nation a bright-line rule under which citizenship of those born on American soil cannot be conditioned on the citizenship, allegiance, domicile, immigration status, or nationality of one’s parents.”

But Trump argues it doesn’t apply to the children of undocumented immigrants or even to the children of people in the country legally but temporarily, like those on student or work visas.

The term “subject to the jurisdiction thereof,” the administration argues, excludes anyone who is in the country “temporarily or unlawfully.”

Children of undocumented immigrants and of people here on temporary visas “lack the reciprocal relationship of allegiance and protection that would bring them within the political jurisdiction of the United States,” the Trump administration wrote in court filings.

On Wednesday, Eric McArthur, a deputy assistant U.S. attorney general, argued that there are two types of jurisdiction: regulatory jurisdiction and political jurisdiction. Regulatory jurisdiction means, essentially, someone is subject to the laws of a country. Political jurisdiction, McArthur argued, means someone must owe allegiance to a country to fall under its political jurisdiction.

“There can be a lesser form of jurisdiction,” McArthur said. “We are not looking at that lesser form of jurisdiction.”

Judge Ronald Gould, a Clinton appointee, seemed skeptical.

“Do you look at the ordinary meaning of the words?” he asked. “Are there any dictionaries from the period when the amendment was adopted that define jurisdiction in terms of allegiance?”

The judges also asked difficult questions of Brown’s office and the lawyer representing individual plaintiffs who challenged Trump’s order.

Much of the discussion revolved around the 1898 case of Wong Kim Ark, in which the Supreme Court held that the children of Chinese citizens who were permanent residents of the U.S. were entitled to citizenship.

Noah Guzzo Purcell, Washington’s solicitor general, called Trump’s position “extraordinarily radical.”

Since Ark was decided, Purcell said, “It has been the settled understanding of Congress, the executive branch and the courts that citizenship is granted to babies born in this country regardless of their parents’ immigration status. The Trump administration’s position is that that entire time, everyone was wrong.”

Judge Patrick Bumatay, a Trump appointee, citing the fact that Ark’s parents were in the U.S. legally, asked, “Doesn’t that suggest that permission of the federal government is necessary for this birthright citizenship?”

Purcell repeatedly called Trump’s order unworkable, arguing that hospitals would have to question the parents of every newborn to determine their immigration status and how long they intend to remain in the United States.

But Bumatay pointed out that Trump’s order was blocked before it could take effect.

“We don’t know how unworkable it is because they were not given the chance to implement it,” he said.

Four federal district courts – including one in Seattle – have disagreed with Trump and blocked his executive order. Three appeals courts have allowed the lower court decisions to stand while they fully consider the cases.

“If the government wants to change the exceptional American grant of birthright citizenship, it needs to amend the Constitution itself,” Judge John Coughenour said from his Seattle courtroom in February, as he blocked Trump’s order. “The Constitution is not something with which the government may play policy games.”

At the same time, the Supreme Court is considering a Trump appeal not of the specific decisions of the lower courts, but of how broadly they apply.

Three lower courts have issued nationwide injunctions, blocking Trump’s executive order from applying anywhere in the country. Trump has argued that nationwide injunctions are illegal and that those decisions should apply only to the individuals, or the states, that brought the cases. That issue is pending in the Supreme Court. And it has brought up the possibility of a patchwork system of citizenship, where a baby born in Washington could be a citizen, but a baby born to identical circumstances in Idaho is not a citizen.

During oral arguments last month, Justice Elena Kagan brought up the idea that if nationwide injunctions are invalidated, the Trump administration might never appeal the merits of the executive order all the way to the Supreme Court.

If the Supreme Court decides that a federal judge could only block Trump’s order for a specific individual or state, Trump could still end birthright citizenship for everyone who didn’t file a lawsuit, Kagan said, and would have no incentive to appeal to the Supreme Court, where he could lose a broader ruling.