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U.S. District Judge John C. Coughhenour on Thursday shot down President Donald Trump’s sweeping assault on birthright citizenship, blocking the policy nationwide as a blatant violation of the 14th Amendment. Dahlia Lithwick and Mark Joseph Stern discussed the decision on this week’s Slate Plus bonus episode of Amicus. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: Judge Coughhenour had no patience for the Trump Justice Department’s attempts to defend this order. He called him “Blatantly unconstitutional.” And then when he was talking about the bench talking about what was before him, he said, “I find it difficult to understand how a member of the bar could indicate unequivocally that this is a constitutional order. It just messes with my mind. And there was this moment when he said: There have been judges historically who have done stuff like that, and I won’t be that guy.
Mark Joseph Stern: I think this will be remembered as one of the most important moments of Donald Trump’s second term – much like we remember, as one of the most important moments of his first, when a judge blocked the first iteration of the Muslim ban, and all those detained at airports were released. Then and now, the lawyers showed up. And at least in this first round, they prevailed. This is exactly the decision they wanted, that all defenders of birthright citizenship and our constitutional order wanted: no equivocation, no ambiguity, just a huge smackdown of the president and his administration . And, in the process, a well-deserved diss to the lawyers who are shamefully – although I think, on their part, shamelessly – defending this unconstitutional mandate.
As Judge Coughhenour explained – first from the bench, then in his temporary restraining order – it is established law. The Supreme Court settled this in 1898. Nothing has changed since. All previous points in one direction. The president cannot eliminate birthright citizenship from children born in the United States. He can’t keep it away from children born to undocumented immigrants or children born to legal immigrants, as he tried to do here. The whole thing is scandalous. So Judge Coughhenour slapped a national block on the order.
It will be fought, it will be appealed, and it will eventually get to the Supreme Court, probably sooner rather than later. There will also be more rulings from other judges, because there are now so many lawsuits proliferating against this order. And I think they will all point in the same direction. But it was the first, and in some ways perhaps the most important, because Justice Coughhenour was so firm and so decisive in saying not only that it was wrong, but that history would hold him in contempt if he did not stand to this injustice.
I was struck by the exact same thing, Mark. There was this valence of “Have you no decency, sir” – like, no lawyer who has been admitted to the bar should sign a plea defending this order. It was very much a meta-judgment, with Coughhenour saying: How dare you come into my yard and claim that the 14thth The amendment allows it. This was not just a judgment on an attempt to rewrite the Constitution by decree. It was also a judgment against a bunch of hastily muddled DOJ lawyers who are willing to say absolutely anything, even if it’s not true.
He’s named Reagan, right? And kind of a curmudgeonly one by all accounts. Does this count?
I think that really matters. Look back four years for a comparison: When Biden first took office and Republicans filed a bunch of lawsuits, they were provoked by judges appointed by Trump. They went directly to the most far-right judges, hand-picked by Trump, to ensure they would get these sweeping injunctions against the Biden administration. It was very obvious and very cynical. But this wasn’t a case of jumping the judge. This was the case of a person named Reagan who is not known to be liberal. But he had to recognize what the Constitution declares and what precedent affirms.
So I think it gives a bipartisan shine, maybe a nonpartisan shine, to the ruling. This is not the dead hand of the Biden administration strangling the Trump administration. This is someone who has been there for decades, who has seen it all, who has won and even lost on both sides. And he says: I can’t waver. There is no room for argument. The answer is clear.
I also think it’s important that this happened so quickly. Because the more Trump and his allies were allowed to argue against birthright citizenship without a decisive legal decision, the more danger there was that the idea would take Maybe there’s an argument against birthright citizenshipAnd Maybe Trump had a point.
I will just note that some Trump supporters are already trying to do this. So Ilan Wurman, who is a law professor at the University of Minnesota Law School, tweeted on Thursday: “Maybe the birthright citizenship order will ultimately be held unconstitutional, but I find it highly embarrassing for a judge to say something so unequivocally at a preliminary Step without the slightest acknowledgment that there is an entire literature that disagrees. »
It’s the classic game of pretending that there is another side to a legal argument that has been settled. Oh, there is a “literature” that disagrees? Well, the undisputed intellectual leader of this literature, of this argument, is John Eastman. He’s the guy who spoke at Trump’s “Stop the Steal” rally. Who advised Mike Pence to illegally refuse to certify electoral votes on January 6. Who was found by a federal judge to have “dishonestly conspired to obstruct the joint session of Congress.” The committee on January 6 recommended that Eastman be charged with obstruction of an official proceeding and conspiracy to defraud the United States. Eastman was indicted in two different states for illegally conspiring to fraudulently overturn a free and fair election. He was banned from practicing law in DC and California.
This is the godfather of the ostensible intellectual argument against birthright citizenship! But most people who read this tweet, who hear that there is “another side” to this, are not going to look into who is peddling this stuff. They will just think: Oh, it’s a question of debate, so maybe there isn’t one right answer. And that, again, is how federalist society works. Their goal is to move ideas from “off the wall” to “on the wall,” as Yale professor Jack Balkin explained. Our friend Ian Millhiser at Vox has written eloquently about this and how it works well when the judiciary is fairly aligned with the goals of the Federalist Society. There is an army of lawyers who claim that the established law is in fact unstable. They inject this uncertainty which then gives cover to conservative judges, including Supreme Court justices, to radically change the law.
So, again, it is essential that this attack on birthright citizenship struck resoundingly early, before the idea took root, and before this brigade of cynical and partisan scholars could mount to give him good intellectual support.
I just want to quote Seattle Times reports about what happened in the courtroom. Justice Coughhenour said: “There are other times in the history of the world when we look back and people of good will can say Where were the judges? Where were the lawyers?“And I will say: go back and read The trial of the Nuremberg judges German jurists and lawyers who were complicit in Nazi crimes. It is important to understand that if judges and lawyers are willing to access anything, they will access anything. Now we have an 84-year-old Reagan appointee saying that throughout history there have been times when we’ve asked, “Are you really judges?” Are you really lawyers? And I think it’s deep.
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