A three-judge panel of the U.S. Court of Appeals for the 9th Circuit on Wednesday declined the Justice Department’s request to immediately reinstate President Donald Trump’s executive order limiting birthright citizenship, setting up a potential emergency application to the Supreme Court.
Legal experts have said Trump’s order conflicted with the Fourteenth Amendment, which extends American citizenship to anyone born on U.S. soil, by denying citizenship to future children born in the United States if their mothers were unlawfully present in the country and their fathers were not citizens or permanent residents.
The Justice Department had asked the 9th Circuit to grant an emergency stay of a lower court’s decision blocking Trump’s order from going into effect.
In denying that request, the panel found the Justice Department had not made a “strong showing that they are likely to succeed on the merits of this appeal.”
One member of the panel, Trump-appointed Judge Danielle Forrest, expanded on her reasoning in a concurring opinion, taking issue with the Justice Department’s characterization of an emergency.
“It is routine for both executive and legislative policies to be challenged in court, particularly where a new policy is a significant shift from prior understanding and practice,” she writes. “And just because a district court grants preliminary relief halting a policy advanced by one of the political branches does not in and of itself an emergency make. A controversy, yes. Even an important controversy, yes. An emergency, not necessarily.”
