We have seen, once again, the guardrails that protect the American constitution gradually being compromised by the U.S. Supreme Court in its June ruling that gave way for President Donald Trump to attempt to eliminate birthright citizenship in the United States.
That right has been enshrined into American life and law since enactment of the 14th Amendment in 1868, with these words: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
Legal consensus holds that this clause includes nearly all children born on U.S. soil, regardless of their parents’ immigration status, and was furthermore upheld by the 1898 Supreme Court decision in U.S. v. Wong Kim Ark that a child born in the U.S. to non-citizen parents is still a U.S. citizen under the 14th Amendment.
Irreparable harm
In late January of this year, Trump issued an executive order to end birthright citizenship in the U.S. ― a right that he said was permitted nowhere else in the world and was enacted to solely cover children of former slaves. Both statements were, not surprisingly, false.
Since the issuance of Trump’s executive order on birthright citizenship, the ACLU and nearly two dozen states have filed suit against the presidential order, arguing that it violates the 14th Amendment.
The lawsuit sought to protect babies who would be denied birthright citizenship by the Trump administration, and also asked a judge to grant a temporary block of the president’s order restricting birthright citizenship from going into effect throughout the country.
U.S. District Judge Joseph LaPlante of New Hampshire granted the suit’s class-action status on July 10, particularly because the Supreme Court has also limited the ability of judges to block orders nationwide through injunctions. In so doing, LaPlante also ordered a preliminary injunction temporarily blocking Trump’s order from going into effect.
LaPlante said during the court hearing that depriving a person of the longstanding right of birthright citizenship was creating “irreparable harm” and that birthright citizenship was “the greatest privilege that exists in the world.”
Rolling back the clock on our rights
As we have become accustomed with so many Trump executive orders, as well as with decisions of this Supreme Court, much more is at stake than meets the eye.
This executive order and subsequent ruling by the Supreme Court represent the continued and gradual undoing of constitutional rights enjoyed by Americans for decades ― and, in the case of birthright citizenship, for more than 150 years.
If that isn’t indicative of rolling back the clock on our rights, then nothing is. Sadly, the authoritarianism bull’s eye has sought and is seeking other constitutional targets as well: reproductive rights, marriage equality, voting rights, the separation of powers, due process and more.
This nation was founded on the belief that the “pursuit of happiness” and a creating “a more perfect union” were goals and objectives that had no timeline; and, unfortunately, in that context, many millions of Americans have been denied their freedom and rights, even as good people with good intentions sought to broaden the protections and guarantees of American democracy. If we are to believe in the American Promise, we must conclude, then, that the work for each never ends.
It should be clear to us all that the real target of this Trump order on birthright citizenship is American democracy and values in their most fundamental forms. The order seeks to further undermine our bedrock legal precedents and expectations. The order dismisses the hope for refuge that the global village has in the United States ― even with all its faults. This order seeks, also, to create chaos and instability, widespread litigation with years of legal battles and inconsistent enforcement. This order would create a class of stateless children while potentially violating international human rights standards and burdening government agencies with confusing new citizenship rules.
The end of birthright citizenship would undermine the legal community and long-standing civil rights laws. It would greatly impact Hispanic communities and other people of color, due to the focus on travel bans and undocumented immigrants at the southern border; and immigrant families would be further threatened by a greater acceptance of nativist or xenophobic motivations behind the policy. The order would also further erode civil liberties and fuel racial division.
Growing legal consensus
As if to underscore the rising tension already involved with this case, on July 24, a federal appeals court in San Francisco also ruled that Trump’s order is unconstitutional. The ruling, from a three-judge panel of the 9th U.S. Circuit Court of Appeals, marks the first time an appeals court has weighed in, and brings the issue one step closer to coming back quickly before the Supreme Court.
The 9th Circuit decision keeps a block on the Trump administration enforcing the order that would deny citizenship to children born to people who are in the United States illegally or temporarily; and, while the Supreme Court has since restricted the power of lower court judges to issue orders that affect the whole country, known as nationwide injunctions, the 9th Circuit majority found that the case fell under one of the exceptions left open by the justices. The case was filed by a group of states who argued that they need a nationwide order to prevent the problems that would be caused by birthright citizenship only being the law in half of the country.
Citizenship is not merely a matter of paperwork or birthplace, but a living testament to the nation’s ideals: equality, inclusion and the rule of law. Policies that seek to redefine or restrict citizenship inevitably prompt questions about who belongs and who is cast aside. These questions, in turn, reverberate through the fabric of society, influencing how communities see themselves and how they interact with the broader American story.
The matter of defending birthright citizenship encapsulates a broader struggle over national identity, the meaning of citizenship and the preservation of democratic values. As citizens and observers, it is incumbent upon us to reflect critically on these changes, to engage in honest discourse, and to safeguard the principles that have long defined the nation’s promise.”
Amir Makled is managing partner of the Dearborn-based Hall Makled Law Firm.
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This article originally appeared on Detroit Free Press: Birthright citizenship, a testament to America’s ideals, cannot be compromised | Opinion
Reporting by Amir Makled / Detroit Free Press
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