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BOSTON (AP) — A federal judge in Boston said on Friday he would take under advisement a request from 18 state attorneys general to block President Donald Trump’s executive order ending birthright citizenship for the children of parents who are in the U.S. illegally.
U.S. District Judge Leo Sorokin was the third federal judge this week to hear arguments in lawsuits seeking to block the order. It was unclear when Sorokin, who was appointed by former President Barack Obama, would issue a decision on the request but it was not expected to come Friday.
The state attorneys general, along with the cities of San Francisco and Washington, asked Sorokin to issue a preliminary injunction.
“Millions of Americans who were born to immigrant parents and hundreds of millions can trace their citizenship back to immigrant ancestors — ancestors who built our country and fueled our economy under the protections of the 14th Amendment of the United States Constitution,” Massachusetts Attorney General Andrea Campbell, joined by attorneys general from Connecticut and New Jersey, told reporters ahead of the hearing. “The president cannot change the Constitution with a sharpie or a sham executive order.”
Two other federal judges blocked Trump's order earlier in the week — first in Maryland, where a judge issued a nationwide pause on the order in a lawsuit brought by immigrant-rights advocacy groups and a handful of expectant mothers; and then in Seattle, where a judge in a separate lawsuit decried what he described as the administration’s treatment of the Constitution, saying Trump was trying to change it with an executive order.
Another challenge, brought by the American Civil Liberties Union, goes before a federal judge in New Hampshire on Monday.
In the Boston case, plaintiffs argue that the principle of birthright citizenship is “enshrined in the Constitution” and that Trump does not have the authority to issue the order, which they called a “flagrantly unlawful attempt to strip hundreds of thousands of American-born children of their citizenship based on their parentage.”
They also say Trump's order would cost states funding they rely on to “provide essential services” — from foster care to health care for low-income children to “early interventions for infants, toddlers, and students with disabilities.”
“This is a case about children born in the United States,” Shankar Duraiswamy, the deputy solicitor general for New Jersey, told the court. “The executive branch has no power to take away their constitutional rights to birthright citizenship because they believe it will disincentivize unlawful entry than they have the power to take away First Amendment rights, their due process rights or equal protection rights.”
Eric Hamilton, arguing for the Department of Justice, contended the states challenging the executive order were “misreading” the 14th Amendment.
The Trump administration has asserted that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore not entitled to citizenship.
Sorokin spent much of the hearing probing the potential impacts of the order, including whether it would apply to people previously granted birthright citizenship and the logistics of tracking down people impacted by the executive order.
At the heart of all the lawsuits is the 14th Amendment to the Constitution, ratified in 1868 after the Civil War and the Dred Scott Supreme Court decision, which held that Scott, an enslaved man, wasn’t a citizen despite having lived in a state where slavery was outlawed.
The Trump administration has asserted that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore not entitled to citizenship.
Attorneys for the states have argued that it does — and that has been recognized since the amendment’s adoption, notably in an 1898 U.S. Supreme Court decision. That decision, United States v. Wong Kim Ark, held that the only children who did not automatically receive U.S. citizenship upon being born on U.S. soil were children of diplomats, who have allegiance to another government; enemies present in the U.S. during hostile occupation; those born on foreign ships; and those born to members of sovereign Native American tribes.
The U.S. is among about 30 countries where birthright citizenship — the principle of jus soli or “right of the soil” — is applied. Most are in the Americas, and Canada and Mexico are among them.
