Birthright citizenship still in effect for now, but its future is uncertain

The great grandson of Wong Kim Ark protests the SCOTUS ruling.

"The legal upshot of the Supreme Court’s monumentally disastrous decision in Trump v. CASA (more commonly known as 'the birthright citizenship case') is chaos," reads the lede of the Nation's coverage of Friday's ruling by the activist jurists of SCOTUS.

"Utter legal chaos. In its ruling on Friday, the court’s usual six monarchists granted Donald Trump’s request to reexamine various nationwide injunctions preventing Trump and Stephen Miller from implementing their plans to revoke birthright citizenship to any American who doesn’t happen to be white."

 

I couldn't say it any better. Asian American legal advocates agree.

“Because of (the) 6-3 decision by the Supreme Court to limit nationwide injunctions, we now live in a country where some children would get citizenship and otherswouldn’t, largely depending onwhich circuit court they live near," says Niji Jain, legal director of the Asian American Legal Defense and Education Fund (AALDEF). 

"Birthright citizenship is enshrined in the US Constitution, yet the administration is now empowered to continue its campaign to strip that right. Despite the unanimous response from all federal courts who have heard this issue to enterinjunctions preserving birthright citizenship,some children born in this country are now at risk of becoming stateless.”

In a scathing dissent, Justice Sonia Sotomayor reminded her conservative peers to read the Constitution again. It clearly states: “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.”

She recognizes that this decision opens the door the court to a Trump-ordered elimination of birthright citizenship.

Even more ominous is that the ruling could be applied to other Trump orders, even if they are against the law. The power of the courts to curb actions of the executive branch has been significantly diluted.

“This Court endorses the radical proposition that the President is harmed, irreparably, whenever he cannot do something he wants to do, even if what he wants to do is break the law,” Sotomayor writes.

The Trump administration’s malicious attack on birthright citizenship continues to spread fear, anger, and confusion across immigrant communities. That includes the 3.6 million Asian Americans who are either undocumented, seeking asylum, or are in the US on student and work visas (e.g., H-1Bs).

The High Court's ruling means lower courts will have to determine to what extent, if any, the administration’s blatantly unconstitutional executive orders, including the one about birthright citizenship, can go into effect on a case-by-case basis.

 FYI: A copy of the court’s opinion is available here.

The decision took issue with the scope of the interim relief but did not disturb the fact that three District Courts concluded that the executive order is likely unlawful.

“Let me be clear: this case was never about the merits of the birthright citizenship executive order, it remains unconstitutional” explained John C. Yang, president and executive director of Advancing Justice | AAJC. “Birthright citizenship is a cornerstone of our constitution. The administration knows they have little chance of winning on this issue. Instead, they used the lives of millions of immigrants as a poker chip in an effort to curtail nationwide injunctions, which have been one of the best tools we have to hold this administration accountable for unlawful actions,” Yang said.

With the Administration refusing to challenge the opinions of three different courts on the blatant unconstitutionality of this executive order, the Court today allows them to continue to try to sidestep these three court orders blocking a ban to birthright citizenship. The executive order represents an unprecedented and dangerous overreach of executive authority. It is a fundamental attack on the principles that have defined America for over two centuries. 

“The rights guaranteed by the U.S. Constitution belong to everyone in this country, not just those whose state attorneys general had the courage to stand up to this President’s anti-democratic agenda,” said California Attorney General Rob Bonta. Within 24 hours of the SCOTUS ruling Bonta joined a coalition of 19 other state Attorneys General suing Donald Trump.

In their lawsuit, the Attorneys General argue that the Trump's attempt to unilaterally end birthright citizenship violates the Fourteenth Amendment of the US Constitution and Section 1401 of the Immigration and Nationality Act and should be immediately blocked from going into effect while litigation proceeds. In its decision, the Supreme Court announced a new standard for nationwide injunctions, sending consideration of the scope of the injunction back to the lower courts. The decision states that the executive order cannot go into effect for 30 days.

“The Supreme Court’s decision allows the lower courts to further consider the scope of the district court's nationwide injunction — which we believe is clearly necessary to provide full relief to the states," said Bonta. "We remain hopeful that the courts will see that a patchwork of injunctions is unworkable, creating administrative chaos for California and others and harm to countless families across our country. The fight is far from over, and we will continue working to ensure this unlawful, anti-democratic executive order never has the chance to be implemented.

“This decision potentially leaves many families unprotected against the Administration’s unlawful attack on birthright citizenship,” said Thu Nguyen, Executive Director of OCA. “Ever since the landmark case of the US v. Wong Kim Ark, the Asian American community has been at the frontlines of the legal fight to affirm birthright citizenship. Despite this setback, we will not stop,” says Nguyen.

The SCOTUS decision makes it easier for the court, now acting as the Trump administration's enabler, to continue its ultimate quest to eliminate birthright citizenship.

Birthright citizenship, guaranteed by the Fourteenth Amendment to the US Constitution, grants citizenship to anyone born within the United States, regardless of their parents' immigration status. This principle was affirmed in the landmark case of United States v. Wong Kim Ark, where the Supreme Court ruled that a child born in the US to Chinese immigrants was a citizen.

In essence, birthright citizenship, as established by the 14th Amendment and upheld in the Wong Kim Ark case, ensures that individuals born in the US, including those of Asian descent, are granted citizenship, regardless of their parents' immigration status. 

However, Trump's Department of Justice attorneys argue that the 14th Amendment applies only to children of slaves and shouldn't be granted to generations of children born in the US to parents of immigrants from around the world.

Supreme Court Justice Sonia Sotomayor strongly dissented the SCOTUS ruling.

Sotomayor warns that the decision by the conservative Justices will have an impact beyond the birthright citizenship debate.

“The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution,” she writes.

“No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”

What the ruling has done was essentially create two Americas, the 22 states which  abide by the three lower court injunctions and those to which they don't apply.

“The rule of law is not a given in this Nation, nor any other,” Sotomayor writes in her dissent. “It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival.”

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