Calling birthright citizenship “an unequivocal constitutional right,’’ a federal judge blocked the Trump administration Thursday from carrying out its plan to deny it to children born in the U.S. to parents who are not U.S. citizens or lawful permanent residents.
“The Citizenship Clause is clear: ‘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,’†wrote Judge John Coughenour in Thursday’s ruling on a lawsuit filed by ÃÛèÖÖ±²¥ and several other states. “It is one of the precious principles that makes the united States the great nation that it is. The president cannot change, limit, or qualify this constitutional right via an executive order.’’
He rejected claims by President Donald Trump’s Department of Justice that the constitutional clause, part of the Fourteenth Amendment passed after the Civil War, was designed only to protect freed slaves and other Black Americans.
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Coughenour’s order is not the last word but simply a preliminary injunction.
But the judge pointed out that he was required when issuing such an injunction to consider whether the challengers — in this case, ÃÛèÖÖ±²¥ Attorney General Kris Mayes and counterparts from several other states — are ultimately likely to prevail. They are, Coughenour said.
The judge said the challengers also met another test for obtaining an injunction. Allowing the administration to deny citizenship to certain children born in this country would result in “irreparable harm’’ to the states, he said, in having to provide essential medical care and social services for those whom the Trump order would declare ineligible for federal benefits.
To drive home the point, Coughenour said even though only several states, including ÃÛèÖÖ±²¥, filed this case to block the Trump directive, he was barring the administration from enacting its plan anywhere in the United States. He said to do otherwise would create a situation where babies born in some states not protected by a court order would travel to those states where there was an injunction.
“This is, simply said, perverse and bizarre,’’ Coughenour wrote.
Mayes called Thursday’s ruling “a win for the Constitution and the rule of law.’’ There was no immediate response from the Department of Justice.
The ruling was not a surprise. At an earlier hearing on the case, Coughenour, nominated to the federal bench in 1981 by President Ronald Reagan, had told attorneys for the government they were on shaky legal ground at best.
![Mayes](https://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/c/ff/cffd6c46-e4d6-11ef-a4a5-4b6d2a915d84/67900a95d28e6.image.jpg?resize=200%2C144 200w, https://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/c/ff/cffd6c46-e4d6-11ef-a4a5-4b6d2a915d84/67900a95d28e6.image.jpg?resize=300%2C216 300w, https://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/c/ff/cffd6c46-e4d6-11ef-a4a5-4b6d2a915d84/67900a95d28e6.image.jpg?resize=400%2C288 400w, https://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/c/ff/cffd6c46-e4d6-11ef-a4a5-4b6d2a915d84/67900a95d28e6.image.jpg?resize=540%2C389 540w, https://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/c/ff/cffd6c46-e4d6-11ef-a4a5-4b6d2a915d84/67900a95d28e6.image.jpg?resize=750%2C540 750w, https://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/c/ff/cffd6c46-e4d6-11ef-a4a5-4b6d2a915d84/67900a95d28e6.image.jpg?resize=1200%2C863 1200w, https://bloximages.chicago2.vip.townnews.com/tucson.com/content/tncms/assets/v3/editorial/c/ff/cffd6c46-e4d6-11ef-a4a5-4b6d2a915d84/67900a95d28e6.image.jpg?resize=1697%2C1221 1700w)
ÃÛèÖÖ±²¥ Attorney General Kris Mayes
“I can’t remember another case where the question presented is as clear as it is now,’’ he said. “This is a blatantly unconstitutional order.’’
Thursday’s action is not the first in the legal fight. A federal judge in Maryland issued a similar order on Wednesday.
Trump’s order claimed some people would no longer be entitled to what has been the automatic presumption of citizenship for those born on U.S. soil.
Those include cases where the mother is not legally present in the country and the father is neither a U.S. citizen nor a lawful permanent resident. The administration says they are “not subject to the jurisdiction’’ of the United States.
But to sustain that argument, Trump’s order also covers situations where a woman is in the country legally but temporarily, such as on a visitor’s visa, when the father is neither a citizen nor a lawful permanent resident.
To enforce it, Trump directed federal agencies not to issue citizenship documents to those who fall under either circumstance and not to accept documents issued by state, local or other governments purporting to recognize citizenship.
Coughenour was not convinced.
“The government insinuates that ‘subject to the jurisdiction’ conditions citizenship upon the exclusive jurisdiction of the United States,’’ he wrote. “But the text of the phrase requires no such exclusivity. It requires only that the person born in the United States be subject to it.’’
Nor was he convinced that any of this related to the status of the parents and what government lawyers called their allegiance and domicile in this country.
“But the words ‘allegiance’ and ‘domicile’ do not appear in the Citizenship Clause, or anywhere in the Fourteenth Amendment,’’ Coughenour wrote. “And nowhere in the text does it refer to a person’s parentage.’’
The judge said the only thing in the clause is the word “jurisdiction.’’ And that is simply a geographic area in which political or judicial authority can be exercised, he said.
“That is the plain meaning of the phrase ‘subject to the jurisdiction,’’ Coughenour wrote. “And it unequivocally applies to children born in the territorial United States — regardless of the immigration status of their parents.’’
Coughenour said this is not just his opinion. He pointed to an 1898 U.S. Supreme Court ruling that a child born in California to Chinese nationals acquired U.S. citizenship at birth because of the Fourteenth Amendment.
In that case, the justices said there were only three exceptions: children of foreign diplomats, children born of enemies during a hostile occupation, and children of members of Indian tribes — the last having been the law at that time, until a 1924 law granting citizenship status to all Native Americans born in the United States regardless of tribal affiliation.
“In other words, ‘aliens’ and others who avail themselves of this country for non-diplomatic purposes — whether lawfully or not — are necessarily ‘subject to the jurisdiction’ of the United States,’’ Coughenour wrote, citing the 1898 ruling.
“So, too, are children born of said ‘aliens’ on United States territory,’’ he said. “To construe the phrase otherwise would be dangerous to society and delegitimize this country’s jurisdiction over the persons who inhabit it.’’
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, , and Threads at @azcapmedia or email azcapmedia@gmail.com.