A federal judge gently hints that Trump’s lawyer might consider a change of location and extinguishes the dung—for now.
by Garrett Epps
My late father, an old-school seersucker-and-bow-tie Virginia lawyer, had his good days in court and his other days. After one particularly fraught session in another city, he called my mother to report. “I did just fine,” he said. “They’re going to let me leave town.”
Brett Shumate, a U.S. Department of Justice lawyer, might have made that phone call Thursday night. In federal court in Seattle, Shumate struggled mightily to defend Donald Trump’s executive order that purports to abolish birthright citizenship by excluding children born to undocumented immigrants and others temporarily in the U.S. The order, issued on Inauguration Day, has already given rise to four lawsuits; the hearing in Seattle was the first public proceeding on any of them. (Disclosure: I have no role in any of the lawsuits, but the complaint in the Seattle case, brought by four state attorneys general, cites an article I wrote in 2010 recounting the framing of the Citizenship Clause of the Fourteenth Amendment.)
Shumate’s troubles began when Federal District Judge John C. Coughenour (who is, for whatever relevance this may have, an 83-year-old appointee of Ronald Reagan) asked him whether he thought Trump’s order was constitutional. When Shumate said yes, Coughenour (as judges, bless ‘em, often will) gave him a subtle hint that he disagreed: “Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind,” Coughenour said. “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
Reports indicate that Shumate was permitted to exit the courtroom. Meanwhile, Coughenour issued a four-page Temporary Restraining Order blocking the federal government from acting on Trump’s order for at least the next 14 days.
Now, gentle reader, you may think this elderly jurist was slightly sharp with young Mr. Shumate. But before we feel too much the unfairness of it all, let’s consider why Coughenour might have felt this way.
For most of us on the sidelines, the outstanding feature of Trump’s order is its cruelty—its deliberate targeting of babies born after February 19, 2025, rendering them stateless and ineligible for the benefits of citizenship most native-born Americans take for granted. Think like a judge, however: From that point of view, the striking defect of the order is simply the crushing weight of legal authority that it purports to sweep aside.
Trump’s order does not admit that the new president is changing the Constitution. Instead, Trump claims that he is applying the Fourteenth Amendment to the Constitution as it should have been applied all along. To understand the claim, recall the Citizenship Clause reads, “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.” This is a remarkably clear sentence. The key to Trump’s assault on citizenship is an intentional attempt to distort its plain meaning. “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof,” the Order says, are the children of undocumented aliens and of non-citizen immigrants who are not in the United States on permanent visas.
What’s radical about Trump’s order is its claim about the meaning of “jurisdiction”; it is supported by the same kind of Sharpied-up evidence as Trump’s warning that Hurricane Dorian was bearing down on Alabama. It is a revisionist theory made up by the far right and field-generaled for decades by America’s next friend, John C. Eastman, author of the “coup theory” of the Vice Presidency. Eastman has been trumpeting this theory since at least 2004; however, it has undergone changes over the years, each neatly suited to the political needs of the far right at any given time.
I could flex my scholarly muscles and try to show you from the historical record that this claim is grotesquely wrong, but I will spare you because the question at the moment is not scholarship but how a judge might see Trump’s order. And what is striking is not merely that it is wrong as a matter of constitutional history; it’s that it asks a district judge to overturn more than a century of decisions by all three branches of government—not simply decisions by the Supreme Court, but statutes passed by Congress and legal findings by the Department of Justice. In other words, all three branches of the federal government have consistently espoused and acted on the clearest reading of the Clause—that a child born in the United States is, unless exempted from U.S. law by diplomatic immunity, an American citizen.
Start briefly with the framing. The words “subject to the jurisdiction” were as clear to the lawyers who wrote the Amendment as they are, intuitively, to readers today. What it meant, one of the Amendment’s sponsors explained, is simply subject to U.S. law and the power of U.S. courts. (At the time, the exceptions were citizens of Indian nations and children of diplomats; today it covers only diplomatic families. Those who want more about this can check here, here, or here.) That is still what “subject to the jurisdiction” means today. Any child described by Trump’s orders meets that definition. So, at the beginning, Trump’s lawyers ask the judge to overturn the text of the Amendment they claim to be interpreting.
But equally important to judges is the legal precedent behind a constitutional rule—and in this case, the precedent is also powerful and precise.
The 1898 case of Wong Kim Ark v. United States arose when immigration officers tried to deny re-entry to the U.S. to a native of San Francisco returning from China because his parents were Chinese subjects and ineligible for citizenship. The Court’s majority brusquely rejected that argument: U.S. law, the opinion argued, made a native citizen of any child who at birth was subject to U.S. law. As recently as 1982, the Court brushed back an attempt to redefine “subject to the jurisdiction” to exclude the undocumented. Such a reading, the majority said, “would undermine the principal purpose” of the Fourteenth Amendment’s guarantees.
So, the Justice Department asked Coughenour to overturn at least two leading Supreme Court precedents—something District Judges can’t do just because Trump disagreed with them.
But wait! There’s more!, as they used to say in late-night TV ads hawking chicken rotisseries and Ginsu knives. It’s not just text and precedent. U.S. law, at 8 U.S. Code Seciton 1401, provides that “[t]he following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof . . . .” Congress formally adopted this definition in 1952, with the understanding that “subject to the jurisdiction” had the meaning given to it in 1868 and 1898.
This makes birthright citizenship not only a constitutional rule but a statutory one—and from the point of view of a judge, that’s a significant difference. Legal precedents are governed by a complex doctrine called stare decisis— “to stand by things decided.” One principle of stare decisis is that a precedent interpreting a statute has greater, not lesser, force than one interpreting the Constitution; the idea is that if a court interprets a statute wrong, Congress can change the statute, while an erroneous constitutional interpretation may be impossible to dislodge unless the Court reverses itself.
In other words, if Trump thinks the meaning of “subject to the jurisdiction” is different, he can ask Congress to change its statute. He hasn’t done that, and so the meaning of the phrase as Congress used it in the statute is binding on federal courts even if the meaning of the phrase in the Constitution is different—no matter whether Trump (or, for that matter His Holiness the Dalai Lama) thinks Congress got it wrong.
And that brings us to another consideration a judge might think about. Trump’s order is far beyond any authority granted to the president by the Constitution. Article I, Section 8, clause 4 grants to Congress, not the president, the power “[t]o establish an uniform rule of naturalization.” This phrase has been interpreted by the courts to give Congress what’s called “plenary power” over immigration law; that power is so broad that the president exercises only the authority granted to him or her by statute. Nothing in Trump’s order cites any statute granting authority to the president; he’s just grabbing a power that belongs to Congress and that Congress has exercised with great precision since at least 1952. Presidents can’t just grab congressional powers because they think it would be nifty to have them—and courts are not supposed to allow them to.
So far, in the competition for branches of government, the score is Birthright Citizenship 2, Trump Order 0. But the game’s not over. Maybe “subject to the jurisdiction” has a meaning that the executive branch can adopt and impose on everybody else. Luckily, we do not have to answer that question because the executive branch has formally adopted a meaning for the phrase—the same meaning the courts and Congress have given it over the past century and a half.
We know that because in 1995, members of Congress first began to explore cutting back on birthright citizenship and proposed a bill called the “Citizenship Reform Act of 1995” that would have re-interpreted the phrase “subject to the jurisdiction” to strip citizenship from the children of the undocumented. The Justice Department’s Office of Legal Counsel (which has the job of establishing binding rules for the executive branch) produced a 10-page memo by the late Assistant Attorney General Walter Dellinger, one of the greatest constitutional lawyers of our time, which stated:
there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States. And, as consistently recognized by courts and Attorneys General for over a century, most notably by the Supreme Court in United States v. Wong Kim Ark, there is no question that they possess constitutional citizenship under the Fourteenth Amendment.
So now it’s Birthright 3, Trump 0, His order lacks the formal support of his own Justice Department. Legally, it is as significant as a pardon of a Thanksgiving turkey. To put it differently, it is a plank stretched out over the open constitutional sea that Trump wants the judge to walk.
Can we be surprised that a judge might react to Trump’s demands with skepticism and hostility? If Trump wants to change the Constitution, he could ask for a constitutional amendment; that would settle the matter. But that’s soooooo hard and couldn’t be done on the famous Day One. Or, recognizing the doctrine of plenary power, he could, on Day One, ask his Republican majority in Congress to change the wording of Section 1401 to incorporate his new definition. But that takes time, it might not work, and it’s not clear that such a change would be constitutional either.
Instead of either, Trump has thrown flaming dung into the courts, which have a duty to stomp it out. He may think he can intimidate the judges the way he has cowed Republican politicians (and, one suspects, conservatives on the Supreme Court). But his record intimidating district judges has been, to be generous, mixed.
He may find some judge somewhere so incompetent or ambitious that they will stumble past the lawlessness that disfigures Trump’s order. But approving it would be a heavy lift even for, say, the Honorable Aileen Cannon of Mar-a-Lago documents fame.
As we move forward, Trump’s lawyers should not be surprised if, from time to time, a conscientious judge cordially invites them to leave town.
Garrett Epps is the legal affairs editor of the Washington Monthly.