Trump’s attack on birthright citizenship sparks legal firestorm
News Commentary by Tom Hodson, courtesy of The Athens County Independent
On the first day of Donald Trump’s second term as president, he signed an executive order to halt birthright citizenship, a national precedent that has been in place for over a century.
Birthright citizenship grants U.S. citizenship to all children born in the United States, even if their parents are undocumented or are not U.S. citizens. Trump’s elimination order is broad and far reaching and was signed under the euphemistic heading of “Protecting the Meaning and Value of American Citizenship.”
Almost immediately, 22 states challenged Trump’s order in various federal courts across the country. More lawsuits are expected.
What is birthright citizenship? To whom does it apply? And what is expected to happen next? I will try to break this down for you and make it easier to understand.
Background
Congress first addressed birthright citizenship during Reconstruction. The Civil Rights Act of 1866 guaranteed U.S. citizenship and all its rights to anyone born in the United States, including formerly enslaved people who previously had no legal status.
Two years later, birthright citizenship was enshrined in the U.S. Constitution by the 14th Amendment: “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
However, the U.S. Supreme Court carved out an exception to the 14th Amendment in 1884. In the case of Elk v. Wilkins, the court ruled 7-2 that the 14th Amendment did not apply to native Americans because “members of Indian tribes owe ‘immediate allegiance’ to their tribes, they are not ‘subject to the jurisdiction’ of the United States and are not constitutionally entitled to Citizenship.”
It also was argued that if Native American children born on reservations were not officially born in the United States, but on Indian land. Native Americans did not become official U.S. citizens until 1924, when Congress passed the Indian Citizenship Act.
In 1894, the Supreme Court ruled that birthright citizenship applied to children born to immigrant parents who were not citizens of the United States, in the case of United States v. Wong Kim Ark.
Wong Kim Ark was born in 1870 in San Francisco to Chinese parents who were not citizens. After a visit to China, Wong Kim Ark was denied re-entry into the United States on the grounds that he was a Chinese citizen and therefore banned by the Chinese Exclusion Act of 1882.
In a 6-2 decision, the court ruled that if it denied citizenship to Wong, it also would need “to deny citizenship to thousands of people of English, Scotch, Irish, German and other European parentage who have always been considered and treated as citizens of the United States.”
So birthright citizenship has been an established part of American life and culture for over 100 years. But now, Trump’s Department of Justice is using the same arguments raised in the Elk case to justify the elimination of birthright citizenship, despite the Supreme Court’s ruling in the Wong Kim Ark matter. Legal experts, however, are skeptical of the government’s arguments.
Trump’s executive order
Trump’s executive order takes a very narrow view of the 14th Amendment, stating that the amendment “has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”
It then enumerates who should be excluded from birthright citizenship: Children born on U.S. soil whose “mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth” or whose mother was in the U.S. temporarily on a visa and whose father “was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
The order is prospective, meaning it applies to children born after Feb. 19.
Legal action to halt the order
As of this writing, 22 states have filed lawsuits to block the implementation of this executive order. In addition, new lawsuits are being filed by special interest groups almost daily. An example is a recent suit filed in federal court in Washington by the Northwest Immigrant Rights Project on behalf of three pregnant women.
On Jan. 23, U. S. District Court Judge John C. Coughenour, in Seattle, issued a 15-day temporary restraining order halting the implementation of the executive order until further arguments can be made to the court. In the temporary restraining order, Judge Coughenour called the executive order “blatantly unconstitutional.”
“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was clearer as this one,” the judge said during the first oral argument.
The judge, a Reagan appointee, has scheduled a hearing for Feb. 6 to hear oral arguments on whether he should expand his temporary restraining order into a preliminary Injunction. A preliminary injunction would bar enforcement of the executive order in the states of Washington, Arizona, Illinois and Oregon while the case is pending in court.
Other cases also are proceeding. A nonprofit immigration rights group (CASA) has brought a case in federal court in Maryland. On Wednesday, Feb. 5, the judge issued a preliminary injunction stopping the implementation of the order, saying “no court in the country has ever endorsed the president’s interpretation.”
Another lawsuit has been filed in Massachusetts on behalf of New Jersey, San Francisco, the District of Columbia, and 18 states. It was filed by the Brazilian Worker Center. No hearing dates are yet set.
While courts are looking askance at the executive order, Trump’s government attorneys promise to vigorously argue in favor of the citizenship ban.
“We look forward to presenting a full merits argument to the Court and the American people, who are desperate to see our Nation’s laws enforced,” the department told the Associated Press.
However, an AP-NORC poll released on Jan. 16 revealed that 51% of respondents said they strongly or somewhat oppose “changing the Constitution so children born in the U.S. are not automatically granted citizenship if their parents are here illegally.” Of the remaining respondents, 29% said they strongly or somewhat favor ending birthright citizenship, and 20% neither favor nor oppose it.”
We should get more judicial clarification on the constitutionality of Trump’s order after this week’s scheduled hearings.
Thomas S. Hodson is the director emeritus of the E.W. Scripps School of Journalism and WOUB Public Media at Ohio University. He was the first Berman Professor of Communication in the Scripps College of Communication at Ohio University. He was the director of the E.W. Scripps School of Journalism from July 1, 2003 through June 30, 2010.
Hodson has had dual career paths throughout his professional career in law and journalism. He was a trial attorney for over 20 years and was a trial judge in both Municipal Court and Common Pleas Court in Ohio for seven years.
Hodson also served as a Judicial Fellow at the Supreme Court of the United States in the Administrative Office of the Chief Justice. He also has been a visiting judge on assignment by the Supreme Court of Ohio.
Throughout his legal career, Hodson pursued journalistic projects both in print and broadcast.
Hodson also has been active in producing public affairs programming for radio and is the host of WOUB’s weekly public affairs podcast, Spectrum. He is the executive producer of six other podcasts.
He has published and continues to write numerous articles and columns for newspapers, magazines, and trade journals.
He co-authored a book called Journalists’ Handbook to Ohio Courts.
He has written and been talent for numerous public television documentaries and public affairs programs.
