CNN
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The Justice Department on Wednesday pressed a federal appeals court to reverse a judge’s ruling that blocked nationwide President Donald Trump’s effort to end birthright citizenship.
The hearing before a three-judge panel of the 9th US Circuit Court of Appeals represents the first time one of the nation’s intermediate courts has heard oral arguments over the constitutionality of the controversial policy, which was blocked by several courts earlier this year before it could take effect.
The hourlong hearing unfolded at a courthouse in Seattle comes as the Supreme Court is considering whether it should modify the lower-court injunctions so that Trump can begin partially enforcing the policy while the legal challenges are resolved.
“Our position is very firmly grounded in text, history and precedent. But I do want to be clear that the 14th Amendment Citizenship Clause sets a floor for birthright citizenship and not a ceiling, so there’s nothing in our position that would prevent Congress – if it saw fit and on the terms it saw fit – from granting citizenship to the children of foreigners who are in the country temporarily or unlawfully,” DOJ attorney Eric Dean McArthur told the court.
Some of the discussion on Wednesday concerned whether the appeals court should also narrow the reach of the ruling issued in February by US District Judge John Coughenour, with McArthur struggling to answer some questions about how the policy would apply to certain groups of immigrants – like asylum seekers – because officials haven’t been able to craft guidance implementing Trump’s executive order due to the series of court orders.
“One of the problems with the injunction is that it enjoined the government from even explaining how this order would be implemented,” McArthur said at one point. “So, how the executive order, if and when it is allowed to take effect, would apply to various categories like asylees, like refugees, is not clear at this point.”
But given the Supreme Court’s pending ruling on whether the injunctions should be reined in, McArthur suggested later that the appeals court shouldn’t yet “put pen to paper” on its own decision.
One member of the panel – Judge Patrick J. Bumatay, a Trump appointee – asked questions throughout the hearing that were sympathetic to the administration’s arguments, including whether a key 19th century Supreme Court Case offered a more limited understanding of who the 14th Amendment’s Citizenship Clause applies to.
Bumatay also pressed an attorney representing the states challenging the policy on whether a nationwide injunction was necessary at this point – an argument the administration has consistently pushed after courts blocked the policy across the board.
“The harms to the states that would flow from a piecemeal rule are the same harms that will flow from the rule itself,” Washington state Solicitor General Noah Purcell said.
“Babies will be born in non-plaintiff states, they will not receive a Social Security number, their families will move into our states and when they arrive here we will not have any way under our existing systems to enroll them in programs that they are entitled to participate in,” he added.
A different panel of the 9th Circuit declined earlier this year to put Coughenour’s ruling on hold, and federal appeals courts in Boston and Richmond similarly rejected requests from the administration to undo other rulings blocking Trump’s policy.
Trump’s order, titled “Protecting the Meaning and Value of American Citizenship,” seeks to bar the federal government from issuing “documents recognizing United States citizenship” to any child born on American soil to parents who were in the country unlawfully or were in the states lawfully but temporarily.
