Dem
47
GOP
53
Donald Trump thinks nothing of signing XOs that blatantly contradict the Constitution. The most egregious example is the one limiting U.S. citizenship to people born in the U.S. of at least one citizen parent. He even signed that one on Day 1 of Trump v2.0. Needless to say, there was a lawsuit about this. Trump lost the first round when Judge John Coughenour ruled that the XO violated the Constitution.
Yesterday, the appeal was heard in the U.S. Court of Appeals for the Ninth Circuit, in Seattle. The DoJ lawyer, Eric McArthur, argued that taking the Constitution literally encourages "birth tourism," where foreign pregnant women come to the U.S. in their ninth month for the explicit purpose of giving birth to an American citizen and then trying to stay themselves based on the family relationship. McArthur said that the Fourteenth Amendment applies only to women who are "domiciled" in the U.S. McArthur also said that the congressional debate at the time showed that the only intention of the Amendment was to give the newly freed slaves citizenship. Judge Ronald Gould, a Bill Clinton appointee, said: "I don't see any language in there textually that says they have to be domiciled." Scratch that vote.
Judge Michael Hawkins, also a Clinton appointee, said that an argument based on a congressional debate would have earned nothing but scorn from the late Justice Antonin Scalia, who was a strong textualist. Doesn't sound like McArthur is going to get Hawkins' vote either. Since there are only three judges on the panel, it doesn't look good for Trump. The third judge, Patrick Bumatay, a controversial Trump appointee, was not as skeptical as the other two. If he votes to uphold the XO, then when the case gets to the Supreme Court, the justices could try to latch onto his argument. Basically, he referred to the 1898 Supreme Court decision Wong Kim Ark in which the Court held that Wong was a citizen by virtue of being born in the U.S. even though his parents were not citizens. However, they were legally in the country so Bumatay supposed that the legality of the parents' residence is the key, even though nothing in the decision suggested that the parents' immigration status mattered. (V)