U.S. District Judge John Coughenour repeatedly interrupted a Justice Department lawyer during arguments to ask how he could consider the order constitutional. When the attorney, Brett Shumate, said he'd like a chance to explain it in a full briefing, Coughenour told him the hearing was his chance.
The temporary restraining order sought by Arizona, Illinois, Oregon and Washington was the first to get a hearing before a judge and applies nationally.
The case is one of five lawsuits being brought by 22 states and a number of immigrants rights groups across the country. The suits include personal testimonies from attorneys general who are U.S. citizens by birthright, and names pregnant women who are afraid their children won't become U.S. citizens.
Coughenour, a Ronald Reagan appointee, began the hearing by grilling the administration's attorneys, saying the order "boggles the mind."
"This is a blatantly unconstitutional order," Coughenour told Shumate. Coughenour said he's been on the bench for more than four decades, and he couldn't remember seeing another case where the action challenged was so clearly unconstitutional.
Shumate said he respectfully disagreed and asked the judge for an opportunity to have a full briefing on the merits of the case, rather than have a 14-day restraining order issued blocking its implementation.
Arguing for the states, Washington assistant attorney general Lane Polozola labeled as "absurd" the government's argument that the children of parents living in the country illegally are not "subject to the jurisdiction" of the United States.
"Are they not subject to the decisions of the immigration courts?" he asked. "Must they not follow the law while they are here?"
He also said the restraining order was warranted because, among other reasons, the executive order would immediately start requiring the states to spend millions to revamp health care and benefits systems to consider an applicant's citizenship status.
"The executive order will impact hundreds of thousands of citizens nationwide who will lose their citizenship under this new rule," Polozola said. "Births cannot be paused while the court considers this case."
Trump's executive order, which he signed on Inauguration Day, is slated to take effect on Feb. 19. It could impact hundreds of thousands of people born in the country, according to one of the lawsuits. In 2022, there were about 255,000 births of citizen children to mothers living in the country illegally and about 153,000 births to two such parents, according to the four-state suit filed in Seattle.
The Trump administration argued in papers filed Wednesday that the states don't have grounds to bring a suit against the order and that no damage has yet been done, so temporary relief isn't called for. The administration's attorneys also clarified that the executive order only applies to people born after Feb. 19, when it's set to take effect.
The U.S. is among about 30 countries where birthright citizenship – the principle of jus soli or "right of the soil" – is applied. Most are in the Americas, and Canada and Mexico are among them.
The lawsuits argue that the 14th Amendment to the U.S. Constitution guarantees citizenship for people born and naturalized in the U.S., and states have been interpreting the amendment that way for a century.
Ratified in 1868 in the aftermath of the Civil War, the amendment says: "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."
Trump's order asserts that the children of noncitizens are not subject to the jurisdiction of the United States, and orders federal agencies to not recognize citizenship for children who don't have at least one parent who is a citizen.
