Eighteen weeks after taking office, Donald Trump and his administration continue their malicious program of mass deportations of undocumented immigrants, green card holders, international students with visas, U.S. citizen children — including a four-year-old battling Stage 4 cancer — all without due process.
On May 9, masked ICE agents arrested Mayor Ras Baraka of Newark, New Jersey who was at the gates of an ICE detention center in his state to hold a press conference with three congressional representatives there who had been an oversight tour. The Trump regime later threatened to arrest the three legislators, charging they “body-slammed” an ICE officer. This, after ICE arrested a Wisconsin judge on April 25 alleging she had interfered with the arrest of an immigrant in her courtroom.
Meanwhile, Trump is actively exploring the idea of deporting people to Libya and Rwanda, and White House Deputy Chief of Staff Stephen Miller has threatened to suspend habeas corpus, which provides citizens and residents alike a right to challenge their imprisonment.
On the same day Trump began his second term in the White House, he signed an executive order attempting to end birthright citizenship for children born in the U.S. to parents without legal status or on temporary visas. Federal judges in three cases that were heard in Maryland, Massachusetts and Washington blocked Trump’s order from going into effect, determining that the president cannot eliminate birthright citizenship embodied in the U.S. Constitution’s 14th Amendment. Between The Lines’ Scott Harris spoke with Jacob Love, senior attorney with the Boston-based group Lawyers for Civil Rights. Here he talks about his work challenging President Trump’s executive order to end birthright citizenship, and the related case which will be heard by the U.S. Supreme Court on May 15.
JACOB LOVE: So in January, the same day that the administration began, my organization, Lawyers for Civil Rights, filed a lawsuit seeking to halt the administration from implementing its executive order on birthright citizenship. We filed it on behalf of two immigrant-serving community organizations here in Massachusetts, La Colaborativa, the Brazilian Worker Center and a pregnant mother. The executive order states that the federal government will no longer recognize as American citizens, children born in the U.S. to parents without citizenship or lawful permanent resident status. As a result, the government would stop issuing these children critical documents like passports and Social Security cards.
But the president and the executive branch more generally simply do not get to decide who becomes a citizen at birth. The 14th Amendment enshrines birthright citizenship in the Constitution for “All persons born in the United States, with very rare exceptions, such as children of foreign diplomats.”
And in fact, the Supreme Court has already ruled on this exact issue over 100 years ago. In 1898, in a case called U.S. versus Wong Kim Ark, the court held that the children of immigrants born on U.S. soil, in that instance, Chinese immigrants, are unequivocally covered by the 14th Amendment’s broad grant of birthright citizenship. On top of that, legal experts and federal agencies — including the State Department and Social Security Administration — have recognized this in their policies for decades, honoring U.S. citizenship based only on U.S. birth certificates.
So if this policy is allowed to go into effect, it will inflict countless severe harm on countless innocent children and families. It’s really unconscionable, the level of harm that they’ll experience.
SCOTT HARRIS: So, Jacob, as we’ve been talking about the Supreme Court is scheduled to begin a hearing on the issue of birthright citizenship. The justices won’t be directly addressing the constitutionality of Trump’s executive order attempting to eliminate the constitutional provision, but rather a challenge to federal judges’ power to issue nationwide injunctions.
Tell us what you think the Trump administration is up to here, in terms of narrowing the scope of how they’re challenging this case in the Supreme Court.
JACOB LOVE: Yeah, that’s a great question, Scott. So the independence of the federal judiciary is absolutely critical at a time like this when, as we’ve seen, Congress is unwilling or unable to really take any action to check the executive branch right now. Numerous federal judges, district court judges, who sit in various states across the country have issued what are called injunctions or orders preventing the administration from implementing a number of its policies.
These preliminary injunctions, they’re called preliminary because they’re issued at the beginning of the case to maintain the status quo and stop people from being harmed while the case proceeds to a final resolution on the merits. And the Trump administration has had a number of its policies enjoined (prohibited by injunction) and they want to get the Supreme Court to issue a ruling preventing judges from stopping the implementation of their orders across the country.
And that doesn’t really make sense for a host of reasons. And this case is really a particularly good example, I think, this case being the birthright citizenship case. Essentially, what the Trump administration wants the Supreme Court to do is say that a district court judge like the one in our case, who is a district court judge for Massachusetts, can only issue an injunction stopping the administration from implementing the policy in the judge’s jurisdiction. So, Massachusetts.
But that doesn’t make any sense, because if the judge issued an order stopping the Trump administration from imposing this birthright citizenship policy on the children who live in Massachusetts, that would create chaos. How would an agency as big as the State Department, which handles thousands of requests for passports, and the Social Security Administration, which gets thousands of requests for Social Security numbers and the like every single day, how would the employees of those agencies be able to distinguish between someone who lives in Massachusetts, someone who is just visiting Massachusetts, a Massachusetts resident who happens to fill out the application while they’re in a state like Alabama?
It’s just not something that can be done logistically. It’s not feasible. And it’s going to create chaos. And there are going to be mistakes. So that’s why when you have an executive order like this one that is so clearly unconstitutional, that’s why federal judges in some cases, should be able to issue nationwide injunctions.
I understand, that in some ways, it’s difficult for people to understand why one federal judge, can stop the administration from implementing a policy across the country. But federal judges are appointed by the president. They have to be confirmed by Congress. And they’re the top of the legal field. They’re the smartest people that the legal field has to offer. And they don’t make these decisions lightly.
The lawyers, I can tell you this from firsthand experience, have to go through a significant and long briefing process. They have to argue the merits of their cases in a hearing before the judge at which the Department of Justice gets to present its argument and its evidence. So these judges are not just issuing these orders on a whim. There’s a long process that has to happen before they can issue these orders. And especially in the birthright citizenship context, the order is critical to protecting children across the country.
For more information, visit Lawyers for Civil Rights at lawyersforcivilrights.
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