(CN) — The Ninth Circuit Court of Appeals on Wednesday night declined the Justice Department’s request to lift a lower court’s ruling that blocked President Donald Trump’s executive order restricting birthright citizenship as part of his administration’s larger efforts surrounding immigration.
Trump’s “Protecting the Meaning and Value of American Citizenship” executive order narrows birthright citizenship to people born to one or more parents who are already citizens. Trump signed the order hours after his inauguration on Jan. 20.
A Washington state federal court on Feb. 6 issued a preliminary injunction to block the executive order.
The Trump administration filed its motion for an emergency stay pending appeal last Wednesday, claiming that the temporary injunction was overbroad and “restrains the operation of an executive order as to every person in the United States at the behest of just two individual plaintiffs and four states.”
The Ninth Circuit rejected the administration’s motion Wednesday.
“Appellants have not made a ‘strong showing that [they are] likely to succeed on the merits’ of this appeal,” U.S. Circuit Judges William C. Canby, Jr., a Jimmy Carter appointee, and Milan D. Smith, Jr., a George W. Bush appointee said in the ruling.
Along with two individual plaintiffs, Oregon, Arizona and Illinois joined Washington state in the lawsuit, claiming the executive order alters the longstanding interpretation of U.S. citizenship law. The four-state coalition argued the controversial order will affect hundreds of thousands of children nationwide and that Trump lacks the authority to amend the Constitution.
U.S. Department of Justice attorneys conceded the injunction as it applies to the two individual plaintiffs, but said the four states had no right for the claims.
“Citizenship is an individual right, and the states have no ability to assert, against the federal government, individual-rights claims of their residents, much less-as the states’ theory of relief here implies-individual-rights claims of residents of other states,” the government wrote.
The government noted that it wasn’t asking for any ruling on the merits of the constitutional claims, but that it was merely asking the Ninth Circuit panel to recognize the emergency of the nationwide scope of the injunction.
However, the panel did not think emergency intervention was warranted.
In a concurring opinion, U.S. Circuit Judge Danielle J. Forrest said that emergency relief is only granted when a demonstrable irreparable harm will immediately occur, something that she determined the government had not established.
“Our duty is to ‘act responsibly,’ not dole out ‘justice on the fly,’” Forrest, who was appointed by Trump himself in his first term, said.
She noted the abbreviated time frame the government had given the panel, which had only one week to make its Wednesday ruling, to come before the Jan. 20 deadline the government had offered. She also said judicial rulings themselves do not constitute an emergency.
“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,” she wrote.
Acknowledging the controversy, however, the panel did place the case on the court’s calendar for June 2025.
The ruling primes the case to land in the hands of the U.S. Supreme Court as the government will likely appeal the issue.
Birthright citizenship was enshrined in the Constitution after the Civil War to repudiate Dred Scott. The 14th Amendment declared that “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.”
U.S. District Judge John Coughenour, a Ronald Reagan appointee, called the executive order “blatantly unconstitutional” in January when he quickly ruled from the bench for the temporary injunction.
Coughenour ruled similarly in another Washington state case on Feb. 6, also blocking the executive order in a class action brought by three Seattle-area pregnant women claiming the executive order violates the rights of their unborn children.
On the other side of the country, on Feb. 5, a Maryland federal court issued a similar nationwide block on the executive order in a case by pregnant mothers and immigrant rights groups. U.S. District Judge Deborah Boardman said then that a nationwide injunction was needed because citizenship is a “national concern that demands a uniform policy.”