(WASHINGTON) — A federal judge in Maryland is set to consider whether President Donald Trump will be able to redefine the meaning of the Fourteenth Amendment to exclude the children of undocumented immigrants from birthright citizenship.
U.S. District Judge Deborah Boardman has scheduled a 10 a.m. ET hearing on Wednesday to consider a request by five pregnant undocumented women to issue a preliminary injunction blocking Trump’s Day-1 executive order on birthright citizenship.
The women and the two nonprofits filed a lawsuit against the Trump administration, arguing that the executive order — which challenged the long-settled interpretation of the Fourteenth Amendment’s citizenship clause — violated the constitution and multiple federal laws.
“If allowed to go into effect, the Executive Order would throw into doubt the citizenship status of thousands of children across the country, including the children of Individual Plaintiffs and Members,” the lawsuit said.
Lawyers for the Department of Justice have claimed that Trump’s executive order attempts to resolve “prior misimpressions” of the Fourteenth Amendment, arguing that birthright citizenship creates a “perverse incentive for illegal immigration.” If permitted, Trump’s executive order would preclude U.S. citizenship from the children of undocumented immigrants or immigrants whose presence in the United States is lawful but temporary.
“Text, history, and precedent support what common sense compels: the Constitution does not harbor a windfall clause granting American citizenship to, inter alia: the children of those who have circumvented (or outright defied) federal immigration laws,” DOJ lawyers argued.
The executive order has already been put on hold by a federal judge in Seattle, who last month criticized the Department of Justice for attempting to defend what he called a “blatantly unconstitutional” order.
“I have difficulty understanding how a member of the bar can state unequivocally that this is a constitutional order. It boggles my mind,” said U.S. District Judge John Coughenour. “Where were the lawyers when this decision was being made?”
Because Judge Coughenour’s order only blocked the executive order temporarily, Judge Boardman will consider a longer-lasting preliminary injunction of the executive order.
“The hearing that’s coming up is a proceeding that essentially puts a longer pause,” explained Loyola Marymount University professor Justin Levitt. “It’s an order saying, ‘Don’t implement this,’ because the plaintiffs have shown a likelihood that they’ll succeed when we finally get to a final resolution, but many substantive legal claims are effectively decided on preliminary injunctions.”
With Trump vowing to appeal a ruling that finds his executive order unconstitutional, a preliminary injunction — if granted after Wednesday’s hearing — could be his first opportunity to appeal to a higher court.
Members of the Trump administration spent months crafting this executive order with the understanding that it would inevitably be challenged and potentially blocked by lower courts, according to sources familiar with their planning.
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