By Staff
NORTHWEST ASIAN WEEKLY
Several immigrants rights groups are suing the just-inaugurated President Donald Trump, mere hours after he signed what may be an unconstitutional executive order ending birthright citizenship.
Washington State Attorney General Nick Brown, who has been preparing since November to challenge the Trump administration, is also suing Trump over the executive order.
Trump signed the order—and several others that are facing legal challenges—on Monday, Jan. 20, the day he was inaugurated. The immigrants rights groups filed suit shortly thereafter. Brown said he would file the lawsuit today.
There are an estimated 1.7 million undocumented immigrants from Asia and the Pacific living in the United States. A majority of these immigrants come from India (35%) and China (20%). About 65% of these immigrants have been living in the U.S. for less than 10 years. Any children of these undocumented immigrants born in the United States would be affected by this order, if it legally holds.
Birthright citizenship for children born to undocumented immigrants has been enshrined in the United State Constitution since the 1898 case of Wong Kim Ark, who was born in San Francisco to Chinese citizen parents.
Wong Kim Ark. From Wikimedia Commons.
Immigration authorities denied Wong re-entry into the U.S., following a visit to China, under the Chinese Exclusion Act of 1882, which prevented Chinese citizens from becoming U.S. citizens. But in a landmark decision that has since shaped the course of the nation’s citizenry, the U.S. Supreme Court ultimately held that the U.S. Constitution’s 14th Amendment language meant that Wong—a child of non-U.S. citizens—was a citizen of the U.S.
The 14th Amendment 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.”
The 14th Amendment has since therefore applied to all children of undocumented immigrants.
On the night of Jan. 20, the national group the American Civil Liberties Union (ACLU) and several of its arms—the ACLU of Massachusetts, ACLU of Maine, and ACLU of New Hampshire—as well as the State Democracy Defenders Fund, the Asian Law Caucus, and the Legal Defense Fund sued Trump.
The ACLU also issued a briefing paper on Jan. 21, detailing with legal background why Trump’s executive order is unconstitutional.
“President Trump cannot unilaterally end birthright citizenship, guaranteed by the Fourteenth Amendment, and the [ACLU] and others will challenge an attempt by this or any administration to override the Constitution,” the paper reads. “This Executive Order is clearly unconstitutional; there is no carveout in the Fourteenth Amendment for specific immigration statuses as earlier discussed.”
“If implemented,” the ACLU continues, “it would create a permanent underclass of potentially stateless people and deny critical benefits to children born in the U.S. to immigrant parents, including the right to vote, the ability to get a passport and other necessary documentation, and access to essential education, health, employment, and other benefits.”
The policy would also lead to racial profiling, as well as bureaucratic delays, costs, strain, and confusion at every level of government, the ACLU said in the paper. The ACLU said that the order would also create state-level threats for and attacks on existing citizens.
In the weeks following Trump’s election, several other legal groups and immigrants’ rights organizations also detailed why Trump would not be able to enact this via executive order, including during an Ethnic Media Services briefing in mid-November.
“The case law is exceptionally clear on it, dating back to the 19th century in the case of the United States v. Wong Kim Ark in 1898,” said Jeremy Robbins, the American Immigration Council’s executive director, during that briefing. “So, you would need one of two things to happen: Either you would need a constitutional amendment and you’d need two-thirds of the States to do that, or you would need a drastic change in [United States] Supreme Court jurisprudence, where the Supreme court would overrule the case from 1898.”