The Check-In is WUWM’s on-going series looking at the rapidly changing immigration landscape in the U.S. Today, we’re looking into birthright citizenship, as multiple federal courts have now ruled against President Trump’s executive order seeking to end the act.
Last week, the U.S. Supreme Court heard arguments about the power of those rulings. WUWM’s Jimmy Gutierrez asked Milwaukee-based Immigration Attorney Marc Christopher about what we know.
This conversation has been edited for length and clarity.
Jimmy Gutierrez: We're talking about birthright citizenship, which has been constitutional law for over a century now. But to start at the beginning, where does the amendment even come from?
Attorney Marc Christopher: The 14th Amendment was enacted shortly after the Civil War, and the reason they enacted it is because some of the southern states were still not providing basic services or recognizing some of the freed slaves as citizens.
So they passed the 14th Amendment, which has a number of provisions, including something called birthright citizenship. In other words, if you are born and it says quite clearly, if you were born in the United States, you are a citizen of the United States.
And again, that was put into place because southern states were attempting to not recognize the freed slaves as citizens for purposes of voting for purposes of government services and for other basic rights.
When do we see that amendment or that language challenged?
What happened is, shortly after taking office, President Trump issued an executive order which said that if you or your parents were not citizens of the United States, then you, as the child, would then not be a U.S. citizen just by the fact that you were born in the United States.
You're getting to how simplistic the language is. It says, “All persons born or naturalized in the U.S. and subject to the jurisdiction of are citizens of the U.S. and the states where they reside.” So thinking of that language being pretty clear, what's being challenged, or maybe even better yet, who exactly is being challenged within that executive order?
The executive order for individuals who are in the United States who do not have citizenship or maybe are here without a legal status and the provision within the 14th Amendment or within that clause that you just read, is the clauses and subject to the jurisdiction thereof. So I think they're trying to make some type of argument that the individuals who are here, maybe without legal status or without citizenship, are not subject to the jurisdiction of the United States.
But anybody who has read any of the precedent decisions on this 14th Amendment provision, and it's just familiar with basic jurisprudence or law under the United States, knows that whether or not you're here with legal status or you're here on it as a visitor, you're still subject to the jurisdiction and the laws of the United States.
Let's talk about the oral arguments that were heard, because there was some confusion as far as what they're actually hearing. Is it an argument for this executive order or is it arguments against these rulings from the federal court? Can you break down exactly what happened last week and what the Supreme Court was actually hearing?
Yeah, the executive order for birthright citizenship was a vehicle to take up to the Supreme Court on a different issue. And what happened in this case is that a district judge in California enjoined the executive order from going forward. And with that injunction, it's applied to the entire United States. So the issue before the Supreme Court wasn't the constitutionality of the executive order. It was whether or not a single district court can issue a nationwide injunction on an executive order. So that's the issue, whether or not a single district court, their injunction can be made to impact the entire United States.
What did the federal courts say when this executive order first came in front of them?
So on the issue of birthright citizenship there have been three major Supreme Court decisions which have clearly stated that if you're born in the United States you are a citizen regardless of your lineage, your parent status, that type of thing.
A separate issue is what's been tradition in the United States is that when the president issues an executive order, it can be challenged in the federal courts. And if a court decides that this is likely going to infringe on some basic rights, or that it would likely be found unconstitutional, that court can issue an injunction. In other words, stopping that executive order from taking effect until it makes its way on the merits through the court system and when there was a lawsuit that was filed, the court indicated that this would seem to be very clearly a violation of the 14th Amendment. And as a result of that, they said they were going to issue a nationwide injunction that foreclosed this executive order from taking effect until it ran its course on the merits — litigated in the federal courts.
So this hearing happens — the justices have their time to speak — what about that kind of back and forth caught your ear as far as what people can expect going forward?
I was really struck by the questioning from Justice Kavanaugh. He was asking the solicitor general, 'OK, if this were to go into effect, how do you expect the states, local governments and everyone else to comply so quickly with such an executive order?' This would be a major shift in policy in the United States that's going to affect every level of government. And the solicitor general indicated basically that it was up to each agency, each state, each local jurisdiction, to come into compliance with the executive order.
The other thing that struck me is that the justices asked the solicitor general [about how] there are so many people that this is going to affect, so many parents, that this is going to affect. Why is it not smarter to have a nationwide injunction, let the constitutionality of the issue be decided?
And the solicitor general said that it would be better if each person were to file a lawsuit in each of their jurisdictions and have injunctions if the courts deem them to be appropriate, district by district, which seems almost absurd when you think about a parent is giving birth to a child and then every parent is supposed to hire an attorney and file a federal lawsuit seeking to enjoin or challenge an executive order.
But that's what the solicitor general seemed to suggest.
What are the potential consequences that you could see for the people that you represent, or the people that may find themselves in a vulnerable position from a ruling like this?
The people that I represent, if their children are not deemed to be U.S. citizens, those children will not necessarily be able to get some of the basic rights, protections and benefits of living in the United States, whether that be potentially from schooling, health care, being able to assert legal rights in courts.
But I think that there's a broader concern in the sense that to what degree are we going to look back and potentially strip people of their citizenship? If a birth certificate in the United States in and of itself is no longer proof of your U.S. citizenship, what do we have to prove to prove that we're U.S. citizens? Do we then have to show our parents birth certificates? Do we have to show our parents naturalization certificates? Do we have to show our grandparents naturalization certificates? It creates a tangled web for just the average person to demonstrate that they're a United States citizen.
What are the concerns you are hearing about this executive order?
[Thinking about people potentially affected], obviously, people who have had children in the United States recently are concerned that their children are not going to be recognized as citizens and with it are some basic protections and responsibilities.
But here's the other issue, I have had other clients contact me whose parents maybe were not U.S. citizens at the time they were born. They're worried that it's going to impact them. Or if this executive order, which was enacted in January of 2025, maybe could be expanded and then work retroactively so it would impact them.
So they are scared and they're asking, ‘What do I need to get from my parents to prove that I'm a U.S. citizen?’ I have not had clients like this, but I have heard from other attorneys, individuals who were seeking to have labor induced so they have their children before or their child before the executive order takes effect.
So that's the level of anxiety that's out there as a result of this executive order.
The Supreme Court just had these hearings listening to the legality of these injunctions, but what happens next? What can people expect?
It depends on how the Supreme Court rules on this. If the Supreme Court says yes nationwide injunctions and the executive orders are unconstitutional, then the executive order may be enforceable in certain districts where the district courts have not enjoined.
So, in other words, to make it more simple, there might be certain areas in the United States whereby this executive order will become law, at least until the Supreme Court hears the issue, which can be years down the road.
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