Another Appeals Court Upholds Block on Trump’s Birthright Citizenship Order

A second federal appeals court has upheld a block on President Donald Trump’s birthright citizenship restrictions, saying that the administration was likely to lose in trying to show the policy was legal.

The ruling on Oct. 3 is the latest in an ongoing legal saga in which the Supreme Court is expected to on the contours of birthright citizenship. In the past week, the Trump administration has already asked the Supreme Court to intervene in two other cases on the issue.

Trump signed an executive order in January to halt the government’s practice of granting birthright citizenship to the children of illegal immigrants. Multiple states sued while alleging that the policy violated not just the Constitution but federal law and Supreme Court precedent as well.

In its 3-0 decision on Oct. 3, the U.S. Court of Appeals for the First Circuit agreed while upholding preliminary injunctions on his policy.

Writing for the court, Chief U.S. Circuit Judge David Barron said that the lessons of history “give us every reason to be wary of now blessing this most recent effort to break with our established tradition of recognizing birthright citizenship and to make citizenship depend on the actions of one’s parents rather than—in all but the rarest of circumstances—the simple fact of being born in the United States.”

His opinion indicated that the Justice Department had misinterpreted the Supreme Court’s 1898 decision in Wong Kim Ark v. United States, which held that the 14th Amendment granted citizenship to a Chinese man born to parents who were domiciled in the United States.

Known as the Citizenship Clause, the relevant portion of the 14th Amendment reads: “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.”

Disputes have revolved around what the term “subject to the jurisdiction thereof” means and who it includes.

The administration has argued that the court’s decision in Wong Kim Ark supports the idea that whether someone is domiciled or has a permanent residence in the country is an important determinant of whether their children receive citizenship. Children of illegal immigrants, meanwhile, were not determined to have citizenship under Wong Kim Ark or the 14th Amendment, according to the Justice Department.

Barron disagreed and said that the court in Wong Kim Ark only recognized one exception to birthright citizenship, which pertained to children born to members of Native American tribes.

“It is worth noting, too, that the text of the Citizenship Clause hardly compels the Government’s domiciled-based reading, as it is far from evident why the word ‘domicile’ would not have been used if it were understood to be so critical,” he said.

Barron also indicated that the administration had violated a portion of the Immigration and Nationality Act that he said was intended to implement the Citizenship Clause.

His decision followed another in July when the U.S. Court of Appeals for the Ninth Circuit said Trump’s policy violated the Constitution.

The First Circuit’s ruling was based on preliminary injunctions in two cases, including one brought by New Jersey and other states. That particular case and two others from Maryland and Washington reached the Supreme Court earlier this year but with a focus on the nature of lower court blocks—known as nationwide injunctions—on Trump’s policy rather than the 14th Amendment.

In June, the Supreme Court held that nationwide injunctions generally exceeded courts’ authority but allowed for certain workarounds.

The Trump administration is now asking the Supreme Court to address subsequent court decisions that blocked his policy—this time specifically regarding whether the policy violates the Citizenship Clause and the Immigration and Nationality Act.