Opinion

Federal judge blocks Trump’s executive order on birthright citizenship

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

January 26, 2025 | 12:00am

On Jan. 23, 2025, a US federal judge in the state of Washington temporarily blocked President Trump’s executive order on birthright citizenship, calling it “blatantly unconstitutional.” Under Trump’s proposed executive order, a child born in the US would no longer automatically be a US citizen unless at least one of their parents was either a US citizen or lawful permanent resident at the time of their birth. In particular, a child born to a mother who was out of status or in the US on a temporary nonimmigrant visa would not be a US citizen unless the father was already a US citizen or lawful permanent resident.

The judge was extremely skeptical about the legitimacy of this executive order and was quoted as saying that “I have been on the bench for over four decades. I can’t remember another case whether the question presented was as clear.” The judge further asked, “Where were the lawyers” when the decision was made to sign that executive order, and that it “boggled” his mind that a member of the Bar would believe such an executive order was constitutional.

In his Temporary Restraining Order, the court even said that there “is a strong likelihood that plaintiffs will succeed on the merits of their claims” that the executive order violates the 14th Amendment and the Immigration and Nationality Act.

This case was one of several lawsuits filed by various states and groups challenging Trump’s birthright citizenship executive order. The judge set another hearing for Feb. 5. Therefore, for now, children born in the US will still be considered US citizens. And given the strong language and comments by this judge, it is highly likely that he will find this executive order to be unconstitutional.

So, what would happen next? The case would be appealed to the Court of Appeals and ultimately will be presented to the Supreme Court. It will be the Supreme Court that will ultimately have to decide this case and interpret the meaning of the 14th amendment to the US Constitution, which states: “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.” The issue is the meaning of the phrase “subject to the jurisdiction thereof.”

In a previous video, I discussed and explained the history behind this phrase, and I invite you to watch that video for more details. In fact, in 1898, the US Supreme Court decided the issue of birthright citizenship in the case, United States versus Wong Kim Ark, where the court stated that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China,” automatically became a US citizen at birth.”

But here’s what I think Trump will argue in front of the Supreme Court: the Wong Kim Ark case is different from his executive order and therefore should not apply because in that case, the parents had a permanent domicile and residence in the US. In other words, Trump will argue the parents in that case were permanent residents of the US and therefore their child could be considered a US citizen. However, his executive order applies to children born of parents who are not permanent residents, which is why he made the executive order apply to children born to mothers who are either out of status or here on temporary nonimmigrant visas.

And I also want to clear up some confusion on this executive order that even if implemented, it would not apply retroactively. A 40-year-old US citizen was traumatized over this executive order because although he was born in the US, his parents were out of status. After he reached his 21st birthday, he petitioned them and now they are all US citizens. He was afraid this executive order would strip them all of US citizenship. That is not the case, as the executive order would only apply to children born after the date of the executive order.

In my opinion, once the case gets to the Supreme Court, I think they will uphold the concept of birthright citizenship, as has been the practice since the enactment of the 14th Amendment in 1868, and certainly for over 125 years since their 1898 case of Wong Kim Ark. We will continue posting videos and articles on this topic when there are new developments.

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