A second ruling enjoining President Trump’s effort to end birthright citizenship underscores the constitutional headwinds faced by that push to rewrite immigration law. 

The decision that Mr. Trump’s executive order on birthright citizenship “runs counter to our nation’s 250-year history of citizenship” was handed down by Judge Deborah Boardman of the federal district of Maryland. Judge Boardman’s ruling, issued at the request of civil rights groups and pregnant mothers, followed an injunction issued last month by a federal judge in Washington state, John Coughenour.

Judge Coughenour reckoned that Mr. Trump’s executive order “boggles the mind” and is “blatantly unconstitutional.” Judge Boardman echoed that language. She writes: “No court in the country has ever endorsed the president’s interpretation. This court will not be the first.” Judge Boardman was appointed to the federal bench by President Biden in 2021. 

Judge Boardman declared that Mr. Trump’s order “conflicts with the plain language of the 14th Amendment” and contradicts 125-year-old binding Supreme Court precedent. The dictate, which was meant to take effect on February 19, is titled “Protecting the Meaning and Value of American Citizenship.” Signed on the day of Mr. Trump’s inauguration, the order vowed that the government will not “issue documents recognizing United States citizenship” to any children born on American soil to parents who were in the country unlawfully. It also applies to parents who were in America temporarily but legally. 

Mr. Trump’s order contends that the 14th Amendment “has never been interpreted to extend citizenship universally to everyone born within the United States.” Judge Boardman, though, maintains that “citizenship is a most precious right, expressly guaranteed by the 14th Amendment to the Constitution.” She reckons that if Mr. Trump’s order is allowed to take effect, “irreparable injury” would ensue. The DOJ is likely to appeal the ruling.

The constitutionality of Mr. Trump’s intention to end birthright citizenship will likely turn on how appellate courts — and possibly the Supreme Court — understand the meaning of the 14th Amendment. It ordains, “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.”

That amendment overturned the Supreme Court decision of Dred Scott v. United States, which denied citizenship to enslaved persons and even those who, like Scott, were freed. Common law since the Founding had held that birthright citizenship belonged to everyone except slaves and Native Americans, who would gain citizenship by statute in 1924. The phrase “subject to the jurisdiction thereof” has frequently been taken to exclude foreign diplomats and foreign forces. 

In the 1898 Supreme Court case United States v. Wong Kim Ark, the high court held that a man born at San Francisco to non-citizen parents was an American citizen. Those Chinese immigrants, though, were legal residents and not illegal immigrants. That distinction could make a difference in respect of whether Wong Kim Ark is binding precedent. 

Judge Boardman reckons that a consensus among the courts has emerged that the children of illegal immigrants are citizens because they are “subject to the jurisdiction” of American law. A contrary view was voiced by an attorney, John Eastman, in testimony before Congress delivered in 2005. Mr. Eastman would later be criminally charged in Georgia and Arizona — and disbarred in California — for helping Mr. Trump challenge the results of the 2020 election.

In 2005, though, Mr. Eastman explained that the 14th Amendment was based on a previous law, the 1866 Civil Rights Act, “which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power … and particularly those who were in the U.S. illegally.” 

The 1866 law ordained that “persons born in the United States, and not subject to any foreign power” would be considered citizens. Mr. Eastman argues that illegal immigrants are, in some sense, still subject to the foreign power of the country from which they left.