Four federal courts have now declined to reinstitute President Donald Trump's ban on automatic birthright citizenship after an injunction temporarily blocked it, setting up a Supreme Court fight over the issue.
The latest rejection was from the San Francisco-based 9th U.S. Circuit Court of Appeals, with Judge Danielle Forrest, a Trump appointee, ruling that the Trump administration did not qualify for emergency relief from the injunction.
The ruling says “nothing about the merits of the executive order or how to properly interpret the Fourteenth Amendment,” she made clear.
She said it was too early to consider the merits of the case.
“Judges are charged to reach their decisions apart from ideology or political preference,” Forrest wrote in a concurring opinion. “When we decide issues of significant public importance and political controversy hours after we finish reading the final brief, we should not be surprised if the public questions whether we are politicians in disguise.”
If the court rules too easily on emergency requests, she argued, it diminishes trust in the judicial system.
“There must be a showing that emergency relief is truly necessary to prevent immediate irreparable harm,” he wrote. “The Government did not make that showing here, and, therefore, there is no reason for us to say anything about whether the factors governing the grant of a stay pending appeal are satisfied.”
John C. Coughenour, an 83-year-old federal judge in Seattle, blocked Trump's original order to ban birthright citizenship last month pending legal challenges to it.
Critics say the order clearly violates the 14th Amendment's Citizenship Clause, which says that anyone born in the United States is a citizen.
Others point to wording in the amendment that limits citizenship to those willing to be "subject" to the laws of the United States.
The issue is one that will be fought over when the case is finally heard, but Trump knows his order will have a better chance of standing if it is already implemented than if it isn't.
Democrats seem to have a strategy to challenge all of Trump's policies in court, hoping they will be rejected there.
The executive and legislative branches are beyond their grasp right now, but the courts are not all dominated by Republicans yet.
If the case goes to the Supreme Court, though, Democrats are probably out of luck.
