A federal appeals court Wednesday evening declined the Trump administration’s request to partially revive the president’s executive order restricting birthright citizenship.
The Justice Department asked the 9th U.S. Circuit Court of Appeals to immediately limit a district judge’s ruling, one of multiple indefinitely blocking Trump’s order nationwide, to only the individual plaintiffs who sued in an underlying case.
The three-judge appeals panel wrote in its ruling that the administration had “not made a ‘strong showing that [they are] likely to succeed on the merits’ of this appeal.”
Trump’s order would restrict birthright citizenship from being extended to children born on U.S. soil to parents without permanent legal status, part of a flurry of immigration actions he signed on his first day in office. Multiple judges have found the order is inconsistent with the Supreme Court’s longstanding interpretation of the 14th Amendment.
Wednesday’s ruling marks the first time an appeals court has materially weighed in on Trump’s birthright citizenship order, which has come under 10 lawsuits across the country. Though the case will continue before the 9th Circuit, the Justice Department could now seek emergency relief from the Supreme Court.
The 9th Circuit panel comprised William Canby, an appointee of former President Carter; Milan Smith, an appointee of the younger former President Bush; and Danielle Forrest, a Trump appointee.
Forrest wrote separately to stress that the administration had not cleared the high bar for the court’s emergency intervention.
“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,” Forrest wrote.
She went on to caution judges against issuing such weighty rulings on an emergency basis, warning that it is contributing to low trust in the judiciary.
“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,” Forrest wrote.
“In recent times, nearly all judges and lawyers have attended seminar after seminar discussing ways to increase public trust in the legal system,” she continued. “Moving beyond wringing our hands and wishing things were different, one concrete thing we can do is decline to decide (or pre-decide) cases on an emergency basis when there is no emergency warranting a deviation from our normal deliberate practice.”
The administration filed its appeal after a federal district judge in Seattle hearing two lawsuits blocked Trump’s order and accused him of undermining the rule of law. One case was filed by four Democratic state attorneys general, while the other was brought by several pregnant mothers without permanent legal status.
