Federal judge again blocks end to birthright citizenship

A federal judge in New Hampshire again blocked the Trump administration’s effort to end birthright citizenship Thursday, the first such ruling since a Supreme Court decision tossed the first court orders to block the policy nationwide.

Thursday’s ruling from Judge Joseph Laplante of the U.S. District Court for the District of New Hampshire came on behalf of a putative group of all children who would be affected by Trump’s policy. Laplante was one of the federal judges whose initial injunctions were reversed by the high court.

Experts said cases like the one involved in Thursday’s ruling will serve as the testing ground for courtroom fights over Trump’s broader efforts to reshape the federal government without input from Congress after last month’s Supreme Court decision restricting lower courts’ ability to issue nationwide orders against executive branch policies.

In a brief order, Laplante wrote that the children involved in the suit — all those born in the U.S. after Feb. 20 — would suffer “irreparable harm” if Trump were allowed to enact the policy. The judge gave the government seven days to seek a stay from a higher court in the case, which is likely to head to the Supreme Court.

The American Civil Liberties Union, which represented the children, called the ruling a “huge victory” in a statement from attorney Cody Wofsy, who argued the case Thursday.

“We are fighting to ensure President Trump doesn’t trample on the citizenship rights of one single child,” the statement said.

Trump signed the order to restrict birthright citizenship on his first day in office — seeking to strip citizenship from children born to undocumented immigrants and those in the U.S. on temporary legal status — and it has been one of the most high-profile legal battles of his second administration.

Every court to consider the merits of Trump’s effort to undo birthright citizenship so far has said it likely violates federal law and the Constitution. That includes cases brought by nonprofits, families and several coalitions of states, adding up to 22 in all.

The fast-moving legal question of the moment is whether Trump should be allowed to enact the order in 28 states that did not challenge the policy while his appeals play out.

The Supreme Court said last month in a 6-3 decision that the first round of court orders temporarily blocking the policy, known as nationwide injunctions, were impermissible. The ruling gave the courts 30 days to deal with its majority opinion and litigants in the birthright citizenship cases quickly pivoted their strategy.

Although the justices foreclosed broad nationwide injunctions, experts said the majority left a few avenues for courts to enter similar orders: class actions like Thursday’s case, state cases where an order against the administration would have to be nationwide to work at all and arguments under federal administrative law.

Amanda Frost, a law professor at University of Virginia, said the Supreme Court’s nationwide injunction case “was about more than just the birthright citizenship issue.” Frost said the ruling appears to make legal challenges to executive branch policies more complicated.

“Without nationwide preliminary injunctions, there are just extra hurdles procedurally and the question is going to be, what is the rule going to be in the interim?” she said.

Frost said that how the Supreme Court deals with the next round of birthright citizenship cases will help answer some lingering questions about the new normal of when courts can block executive changes.

In the birthright cases, states argued that they needed nationwide injunctions to deal with the fact that families can easily move across state lines and the ACLU filed a class action suit arguing that the policy should be blocked on behalf of all impacted children.

Return to high court likely

Thursday’s ruling, along with the pending rulings in the other cases, seem destined to head for the Supreme Court again to decide whether the Trump administration can enact its effort to restrict birthright citizenship. Experts like University of Pennsylvania law professor Kermit Roosevelt are skeptical that the class action claims would survive.

“I would be pleasantly surprised if the Supreme Court, having taken away this tool from the courts to use against the Trump administration, are happy with a substitute,” Roosevelt said.

If the courts don’t block the administration’s policy at the end of the 30-day period set by the Supreme Court, infants in dozens of states could lose their citizenship status and be subject to deportation.

“In the short term I think probably the administration is going to deport a lot of birthright citizens and then say it can’t bring them back,” Roosevelt said.

Beyond the birthright cases there has been a flood of legal filings in dozens of lawsuits against the administration — from the Trump administration seeking to undo prior nationwide injunctions and the challengers trying to keep them in place.

They include challenges to shuttering the U.S. Agency for International Development, Defense Department cuts to research funding, and the removal of gender research from federal health websites.

The birthright citizenship cases and other courtroom challenges have become a flashpoint between the Trump administration, Republicans in Congress and the judiciary in the last six months.

Sen. Tom Cotton, R-Ark., responded to Thursday’s federal court ruling by saying on social media he would introduce a bill to end birthright citizenship. Several bills on birthright citizenship are pending this Congress, including from Sen. Lindsey Graham, R-S.C., and Rep. Brian Babin, R-Texas.

“Unlike liberal activists judges, President [Trump] was elected to secure our border and deport those who shouldn’t be here,” Cotton posted.

More broadly Republicans have criticized the role judges have played in checking Trump administration decisions in the first six months of the administration. Several House Republicans introduced articles of impeachment against judges who ruled against Trump and the House passed a bill to restrict lower court judges’ ability to issue nationwide injunctions.

Sen. Eric Schmitt, R-Mo., a member of the Senate Judiciary Committee and one of the chamber’s loudest critics of nationwide injunctions, said he was glad for Supreme Court decision. “I still think there’s a role for the legislature to rein it in,” he said.

In an interview Wednesday, Schmitt pointed to the potential for “abuse” of court processes like the class action suit filed by the ACLU.

“By and large, that’s a huge win for what we were seeing in the first six months. But I think it’s still appropriate for the Article One branch to weigh in here, so we’ll see where all that goes,” Schmitt said.

Democrats such as Connecticut’s Sen. Christopher S. Murphy have criticized the ruling for inviting a “dystopian new reign of lawlessness,” as he put it on a social media post. Murphy pointed to a recent decision by the administration to restrict education funds as an example, arguing that prior to the Supreme Court’s order a lower court could stop such a move that was “CLEAR AS DAY” a violation of federal appropriations law.

Murphy and other Democrats say lower courts should be allowed to issue nationwide injunctions in some fashion, rather than allowing a president to act as he wills and daring the courts to stop them.

“Congress should set up a better way for courts to issue national injunctions. This ruling — at this moment when we NEED the federal courts to constrain Trump’s lawlessness — is a disaster,” Murphy posted. “It quickens our slide to autocracy. The education funding order is just the beginning.”

The case is “Barbara” et al. v. Donald J. Trump, President of the United States, in his official capacity, et al.