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.”

EDITOR'S NOTE: For additional commentary, news, views and chismis from an AANHPI perspective, follow me on Threads, on X or at the blog Views From the Edge. Now on BlueSky.

Texas abortion ban puts health and safety of Asian American and Pacific Islander women at risk

In the dead of night Wednesday, the U.S. Supreme Court rejected a petition to block enforcement of the most restrictive and punitive abortion ban in the nation.

The Texas law, or SB8, took effect on September 1, after the Justice voted 5-4 to not act on the challenge.  Chief Justice John Roberts joined the three liberals in dissent.  

The new law bans all abortions after six weeks when most women don’t even know they are pregnant. The law gives private citizens the right to sue anyone who helps someone get access to an abortion in Texas, not just health care providers, but neighbors, family members, and even strangers.

“This law disproportionately impacts communities of color, especially black communities in Texas. It also impacts Asian Americans and Pacific Islanders (AAPIs)," said Sung Yeon Choimorrow, executive director at the National Asian Pacific American Women's Forum (NAPAWF).

Choimorrow was not alone in her assessement. President Biden called the law that bans any abortion after six weeks an "unprecedented assault on a woman's constitutional rights."

"Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women," said Biden in a statement. "This law is so extreme it does not even allow for exceptions in the case of rape or incest. And it not only empowers complete strangers to inject themselves into the most private of decisions made by a woman—it actually incentivizes them to do so with the prospect of $10,000 if they win their case."

Biden said in his statement he was directing the office of the White House counsel and his Gender Policy Council to review how the government could "ensure that women in Texas have access to safe and legal abortions... and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.

"During a time of increasing anti-Asian American hate and harassment, particularly against Asian American and Pacific Islander women, the Texas law creates fear and confusion by intimidating people out of getting the abortion care they need,” said  Choimorrow, 

“It further stigmatizes abortion in our community and puts abortion care out of reach for those who are unable or don’t have the wherewithal to travel out of state. This is especially dreadful for undocumented community members who may not have health insurance or depend on in-language support.”

There are approximately 1.5 million Asian Americans and Pacific Islanders living in Texas. Of this, 12% lack health insurance and 11% live in poverty. According to research from AAPI Data, as of 2017, 17% or nearly 150,000 AAPIs living in Texas are undocumented. The most common countries of origin for AAPI undocumented individuals in Texas are India, China, the Philippines, South Korea, and Vietnam.

“Asian American and Pacific Islander women are angry and tired of the long-standing efforts to restrict reproductive and abortion access,” said Choimorrow. “NAPAWF will continue fighting until all AAPI women have complete access to the health care they need.”

In her scathing dissent, Justice Sonia Sotomayor minced no words  saying the court's failure to stop the bill is "stunning" and that it "rewards tactics designed to avoid judicial review."

"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny," Sotomayor continued, "a majority of Justices have opted to bury their heads in the sand."

Under the Texas law, private citizens will be able to file civil lawsuits against abortion providers or anyone who helps or advises women get an abortion, including those who escort a woman to a clinic or help her pay for the procedure. If a plaintiff is successful in such a suit, they are entitled to at least $10,000, according to the bill.

In effect, Sotomayor wrote, "The Texas State Legislature has deputized the state's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures,"

EDITOR'S NOTE: For more commentary and references, follow me on Twitter @dioknoed.

SCOTUS finally overturns infamous Korematsu ruling

ONE OF THE WORST decisions made by the Supreme Court was revoked in the Supreme Court decision rendered today in regards to the Donald Trump Muslim ban.

In the June 26 ruling by the conservative majority and in the dissent by the liberal minority, 1944's  ruling that justified the interment of 120,000 Americans of Japanese descent, Korematsu v. United States, was repudiated.

RELATED: A divided Supreme Court upholds Muslm ban

Justice Sonia Sotomayor pointed out in her dissent the “stark parallels between the reasoning of this case and that of Korematsu v. United States,” 

In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind … Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.”…This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.

Chief Justice John Roberts’ majority decision apparently took offense and addressed Sotomayor's inference that Trump’s travel ban was the same thing as the internment of Japanese Americans.

Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

With that, Roberts' Court formally overturned one of the most shameful decisions rendered by the High Court.

Korematsu was decided after Fred Korematsu, a Japanese American of San Leandro, Calif., refused to relocate to an internment camp. U.S. officials arrested him convicted him for refusing to comply. He eventually fought his conviction all the way up to the Supreme Court — but the Court, in 1944, ruled that Korematsu was violated the executive order 9066 signed by President Frankly Roosevelt and the U.S. acted lawfully in attempting to intern not just him but other Japanese Americans.

Although Korematsu died in 2005, in 2011, the Justice Department issued a formal "confession of error" in the his case, acknowledging that government lawyers lied about the severity of the security threat posed by Japanese Americans.

Ironically, the confession was ordered by the acting solicitor general at the time, Neal Katyal, who represented the challengers to the Muslim ban.

Yesterday (June 26) Korematsu's daughter, Karen Korematsu, issued this statement:

"Yet again, I am disappointed by the Supreme Court's decision. The Muslim travel ban is unjust and singles out individuals due to the religion they practice, similar to Execudtive Order 9066 that unconstitutionally imprisoned my father due to his Japanese ancestry.

"In Korematsu v. United States, the Court ruled against my father, a decision that constitutional scholars, on both sides of the aisle, have continued to criticize. Although the Court overruled my father's case today,  it only has substituted one injustice for another.  

"This decision motivates me more to continue my work as Executive Director of the Fred. T. Korematsu Institute to educate, advocate and protect our civil liberties for all."

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