Arizona Daily Star Editorial: 'Blatantly unconstitutional' is just the beginning

U.S. District Judge John C. Coughenour is not known for mincing words.

Even so, the language Thursday from the 84-year-old Reagan appointee was unusual.

“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is,” Coughenour thundered.

The case Coughenour was referring to was a challenge brought by Arizona and three other states against President Donald Trump’s day-one executive order outlawing “birthright citizenship.”

In blocking the presidential order from taking effect, Coughenour called it “blatantly unconstitutional.”

Anyone who has taken the time lately to read the 14th Amendment to the Constitution and doesn’t make a living performing tortured mental gymnastics would be hard-pressed to disagree. The Amendment’s language is about as unambiguous as anything the Constitution has on offer, beginning with the very first sentence: “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 where they reside.”

If you consider yourself an “originalist,” or even if you simply put your faith in our Constitution to protect the American way, it’s hard to interpret that in any way other than Judge Coughenour did.

Justice Department lawyers said after the ruling that they intend to “vigorously” defend the presidential order. Refer to “make a living performing tortured mental gymnastics” above.

We presume the only reason Trump would issue such an incendiary and unlawful order on his first day in office was to signal to his “base” – we use the term advisedly in this case.

We are grateful to Arizona Attorney General Kris Mayes for her quick action in pushing back on the order. It is logical that Arizona should be at the forefront of such a challenge. The very existence of this order denigrates the citizenship of many Arizonans who are citizens through their birthright.

It will not stand, unless …

The roots of this Constitution-defying presidential order are every bit as racist as the infamous Dred Scott decision, which denied citizenship to people of African descent. The 14th Amendment put paid to that, and it will take a Court every bit as racist as the one that came up with Dred Scott to take us back in that direction.

What the presidential order does show, though, is disturbing in the extreme: A stunning lack of respect for the rights granted to all Americans under the Constitution. What else could be challenged? The First Amendment and freedom of speech and the press? The Fourth Amendment, and freedom from unlawful search and seizure? The possibilities are many, all of them disturbing and all of them unthinkable a decade ago.

Soon we can expect the threatened prosecutions of local government officials not cooperating with deportation roundups. Many of us who actually live in the borderlands know that we are not at ground zero in an “invasion” of our country in any real sense. We believe Tucson and Pima County officials are correct – and courageous – in their decision not to act as immigration enforcers, but that fight will be more difficult – and potentially more damaging – than the play-acting over Trump’s doomed birthright order.

For our Day One Dictator, it was an ignominious start.

Three cheers for our system of checks and balances and judicial independence. Let’s hope the Congress finds its institutional backbone to support and defend the Constitution as well.