Trump gut of birthright citizenship gets hostile reception at 1st Circuit

Tomas Harrison

BOSTON (CN) — President Donald Trump’s effort to limit birthright citizenship came under attack during oral argument in the First Circuit late Friday, with the judges repeatedly expressing deep skepticism that his executive order is constitutional — although they also expressed some doubt about whether the states and organizations bringing the cases had standing to challenge it.

“Since 1940, everybody in the executive branch has with incredible regularity been operating on the understanding” that there’s birthright citizenship, noted Chief U.S. Circuit Judge David Barron.

“And suddenly the government says, ‘You know, actually, we’re thinking of another way now.’ That’s a funny way to run a railroad.”

Trump’s order denying citizenship to children born to undocumented migrants and temporary visitors — signed on his first day in office this year — has spawned a cottage industry of legal maneuvering, including one trip already to the Supreme Court, which didn’t rule on the merits but on June 27 rejected a “universal injunction” blocking the move nationally.

The high court suggested that universal injunctions might be available in suits brought as class actions, however, and less than two weeks later a New Hampshire judge imposed just such an injunction, which means that the executive order it still in limbo across the country.

The Fourth and Ninth Circuits have approved preliminary injunctions against the order in other cases. The First Circuit argument also arose from a pair of preliminary injunctions, which means that the court won’t issue a definitive ruling on the merits but will provide a good indication of the judges’ thinking.

The executive order was limited to children born after Feb. 19, 2025, so it didn’t revoke anyone’s citizenship retroactively.

The key legal issue is the 14th Amendment, which grants citizenship to anyone who was born in the U.S. “and subject to the jurisdiction thereof.” It’s not entirely clear what “subject to the jurisdiction thereof” means. The amendment was intended to guarantee citizenship to former slaves, and it didn’t specifically address immigrants in the United States without permission because at the time there were no immigration laws and extremely few foreign tourists.

In 1898, the Supreme Court held that a man named Wong Kim Ark was a U.S. citizen because his parents, although Chinese citizens, were lawful permanent residents in the U.S. But the court has never decided whether citizenship applies to children of non-permanent residents.

Nevertheless, the Supreme Court’s three current liberal justices opined in a dissent in the June ruling that justifying the executive order is “an impossible task in light of the Constitution’s text, history, this court’s precedents, federal law, and executive branch practice.”

Eric McArthur of the Justice Department did his best to lead the First Circuit panel through that task over a 2 1/2-hour argument, parsing centuries-old British law, congressional floor debates, 19th century passport applications, scholarly articles and the convoluted text of the Ark decision.

But the judges repeatedly hammered him with objections suggesting that Ark plainly adopted birthright citizenship and, with very narrow exceptions, anyone present in the country is “subject to the jurisdiction thereof.”

The government “is saying there’s this secret understanding of ‘jurisdiction’ that isn’t reflected anywhere,” complained one of the plaintiffs’ lawyers, Cody Wofsy of the ACLU in San Francisco.

Barron, a Barack Obama appointee, commented that if the government's interpretation is correct it wouldn't make sense to have numerous federal laws that say a birth certificate is proof of citizenship.

Another hurdle for the government is a 1940 federal law, put together following a commission appointed by President Franklin Roosevelt, that codified birthright citizenship. McArthur insisted that the commission reached the wrong result.

“Why did they get it so wrong?” Barron asked skeptically. “They seem like pretty bright people. They were charged with, ‘Can you tell us what Ark means? The president would like to know.’”

McArthur said the point of the statute was to codify Supreme Court precedent, and if the Supreme Court ultimately rules in Trump’s favor, the statute wouldn’t be a problem because it should be interpreted the same way.

But while the judges seemed largely persuaded that the executive order violates the Constitution, they spent almost an hour of the argument debating whether the plaintiffs had standing to challenge it.

McArthur claimed that the states challenging the order couldn’t sue on behalf of people who live there and experienced no harm themselves. But New Jersey’s lawyer, Shankar Duraiswamy, said his state employs 1,500 people just to check eligibility for Medicaid and CHIP programs.

“Citizenship is a touchstone for the federal benefit programs that the states are operating,” he said. “We have to change our eligibility verification systems.”

Another attorney for the plaintiffs, Oren Sellstrom of Lawyers for Civil Rights in Boston, wanted to talk about the Constitution but found himself derailed by questions about whether the organizations he represented had standing just because some of their members had standing and whether any relief would apply to anyone beyond specific members who were pregnant or just had a baby.

McArthur argued that the government hasn’t yet issued many regulations as to how to implement the order, and the states’ claims that they will have to reconfigure their verification systems might turn out to be overblown. He said the Social Security Administration had just issued rules that eliminated many such problems.

Also, he said, the states are experiencing “self-inflicted harm deriving from their decision to offer benefits to people who don’t qualify on the federal level.”

U.S. Circuit Judges Julie Rikelman and Seth Aframe, both Joe Biden appointees, rounded out the panel.