In a July 22 ruling, the U.S. Court of Appeals for the Ninth Circuit ruled that Trump’s executive order issued in January banning birthright citizenship is unconstitutional. And the court upheld a lower court’s injunction to stop implementation of Trump’s order nationwide. This follows a July 11 ruling—in another case around birthright citizenship—by a New Hampshire federal district court judge who also placed a nationwide injunction against Trump’s order.

Birthright citizenship is not a law or regulation—it is written into the 14th Amendment, which means that it is part of the U.S. Constitution and so is a fundamental constitutional right. Under birthright citizenship, everyone born in the U.S. is a U.S. citizen. Trump’s order denies this essential right to children of undocumented immigrants and some other non-citizens. Several federal courts said this was unconstitutional and issued nationwide (also known as universal) injunctions blocking the order from going into effect across the U.S.

But in June, the U.S. Supreme Court effectively backed Trump and threw out those nationwide injunctions. They basically ruled that district courts could no longer issue nationwide injunctions, with very narrow exceptions. This applied not just to Trump’s birthright citizenship order but in court cases generally. 

The effect of the Supreme Court decision was twofold. One, it gutted the ability of courts lower than the Supreme Court to act as a check on unconstitutional presidential orders and actions—a function that these courts have been exercising for at least the past 60 years under both Republican and Democratic presidents. Two, it created a situation in which the 28 states ruled by fascists could deny citizenship to newborn babies of undocumented immigrants, on the basis of Trump's executive order. This was set to get into effect on July 27. (For fuller analysis, see “Fascist Supreme Court Puts Basic Rights in the Crosshairs and Takes a Sledgehammer to the Rule Of Law.”)

Now with the July 11 district court ruling and the July 22 appeals court ruling, Trump's order will be prevented from going into effect—unless the Supreme Court steps in to overrule these lower court decisions. Both rulings assert that the nationwide injunctions they authorized fall within the exceptions the Supreme Court included in their order against most universal injunctions.

The case in the Ninth Circuit (which covers district courts in nine western states) came from four states that sued to stop Trump’s executive order. When the district court in Seattle issued a nationwide injunction against the order back in February, the Trump regime appealed. And now the appeals court has ruled: “The district court correctly concluded that the Executive Order’s proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional. We fully agree.” 

The case in New Hampshire came from a class action suit filed by the ACLU. Class action is a mechanism through which lawyers can sue on behalf of everyone in a large group of people (even millions) who are essentially in the same situation. So in this case, ACLU sued on behalf of all the parents of babies that would be born as non-citizens under Trump’s order, and the babies themselves. In his decision, the judge excluded the parents from the suit but did rule in favor of the babies, and extended this protection via a nationwide injunction.

So for the moment, birthright citizenship remains in effect. This is a good thing, and it reflects a continued willingness of some judges to stand up against blatant fascism in the face of high-level pressure and intimidation being directed at them by the Trump regime and its base—and by the fascist-dominated Supreme Court.

But as we wrote earlier: “This is still a fragile, limited and temporary victory, for the basic and overarching reason that we are living under a fascist regime and that regime solidly dominates the Supreme Court, the highest court in the land, as well as a number of district and appeals courts. Again and again, where rational application of the law and the constitution have come up against the agenda of the fascists, the Supreme Court has found a way to clear a path for the fascist agenda.”

As revolutionary leader Bob Avakian points out:

…those who make up the majority on the Supreme Court are not acting as “legal scholars” who adhere to the Constitution and make rational judgments about whether laws are constitutional. They are fascist functionaries who “re-interpret” the Constitution and the laws, ignoring and defying legal precedent, basic logic and the clear meaning of things, as a key part of enforcing the aims of the Trump fascist regime, of which they are effectively an instrument. (From social media message REVOLUTION #126, More on why only the sustained determined action of decent people can be relied on to defeat and remove the Trump fascist regime)

The Trump regime will almost certainly appeal these rulings against them, and the cases probably will end up at the Supreme Court. And so it is very possible that the lower court rulings and injunctions will be overturned and Trump’s order will go into effect. The situation calls for continued vigilance—and any moves toward green-lighting of Trump’s gutting of birthright citizenship need to be met with massive no-business-as-usual response.