Supreme Court could create a whole new class of noncitizens

A victory for President Donald Trump in the birthright citizenship case before the Supreme Court would not only create a mountain of paperwork for many Americans, but could also create a class of generationally stateless American residents, according to attorneys who have filed briefs in the case.

The legal merits of the Trump administration’s arguments against birthright citizenship aside, the administration’s interpretation of the 14th Amendment, which asserts that at least one of a child’s parents must be a U.S. citizen to claim citizenship, would detonate a bomb in the U.S.’s legal and electoral system and even make Trump’s top legislative priority, the SAVE America Act, practically unworkable.

Danielle Lang, the vice president for voting rights and rule of law at the Campaign Legal Center, told Salon that if Trump gets his way on birthright citizenship and the SAVE America Act, which would require proof of citizenship to register to vote, which could create a bureaucratic nightmare for Americans, in no small part because in this scenario, a birth certificate would no longer serve as proof of citizenship.

“The question of proof of citizenship status would become exceptionally complicated, as the primary proof of citizenship for most Americans is their birth certificate,” Lang said. “Most Americans are citizens by virtue of being born here, and their proof of citizenship is their birth certificate or other proof that they were born in the United States. Only for those who have migrated here are they going to have an alternative form of proof of citizenship, like a naturalization certificate.”

In other words, the passage of the SAVE America Act and the reinterpretation of the 14th Amendment proposed by the administration would create a system in which it’s much easier for naturalized citizens to prove their eligibility to vote than citizens born in the country, who would need to establish their parents’ citizenship status as well as their own. Americans with passports may register to vote more easily under this protocol. However, in order to get a passport, people still need to prove their citizenship, which for most Americans, means providing their birth certificate. It’s also possible that a passport would no longer be proof of citizenship, Lang pointed out, if it was issued before a favorable ruling for Trump.

“I don’t even think a passport issued before this ruling would be proof of citizenship anymore, because the definition of citizenship would have shifted,” Lang said. “The executive order tries to deal with some of this by making its interpretation only forward-looking, saying ‘This is going to be the new interpretation of citizenship from here on out,’ but that doesn’t make any sense.”

The reinterpretation of the 14th Amendment wouldn’t only be a huge election problem if the SAVE America Act passes, however. A decision redefining the 14th Amendment would create problems for the states that have already passed proof of citizenship requirements, including Arizona, Louisiana and New Hampshire. This is only compounded by the fact that the federal government doesn’t have any sort of comprehensive list of who is and is not a citizen, though the Trump administration has been attempting to build something akin to that. On Tuesday, Trump signed an executive order that would create a national database of verified eligible voters. Legal experts say it violates the Constitution.

Robert Peck, the founder and president of the Center for Constitutional Litigation, told Salon that Trump’s interpretation of the 14th Amendment, if accepted by the court, would create a flood of administrative problems for both the government and everyday Americans, who would need to often affirm their citizenship.

“Where driver’s licenses have been the currency of identity, citizenship papers will supersede that basis for declaring who we are. We will move to a society where ‘papers, please’ will become a common inquiry throughout our daily lives, whatever form those citizenship papers may take,” Peck said.

While the problem might be most acute in the context of Trump’s mass deportation campaign, which has already swept up hundreds of Americans, it would also create friction for Americans in everything from accessing Social Security benefits to serving on a jury.

“For the Supreme Court, a ruling in favor of the administration would make another political, as opposed to legal, ruling. It would abandon the common understanding of the amendment by its progenitors, by courts that were hardly immigrant-friendly when the 14th Amendment was first interpreted and binding precedents set, and by understandings that have held sway in all three political branches for more than a century,” Peck said. “It would place the current political moment on a collision course with what is timeless about our constitutional system, leaving in its wake a constitution that is merely the spoils of electoral warfare.”

Another implication of the administration’s theory of the 14th Amendment is that it would create an underclass of U.S. residents who do not hold U.S. citizenship and may not be eligible for citizenship anywhere else in the world.

Morgan Humphrey, an attorney for the Legal Defense Fund who helped author a brief in the case, explained in an interview with Salon that the children of noncitizen residents, whether they are properly documented or not, would be denied birthright citizenship here and may be eligible in their parents’ home country.

“For people who are here on temporary or work visas, and they try to start a family, their children may not necessarily be citizens, so that it goes beyond just what people typically think of as undocumented immigrants,” Humphrey said.

Other countries have tried to eliminate birthright citizenship, with mixed results. In 2013, the Constitutional Tribunal of the Dominican Republic issued a decision ending birthright citizenship in that country, affecting some 245,000 Dominicans and creating a system of generational statelessness, where the children of non-citizen Dominicans are themselves not citizens, with the stateless children being principally of Haitian descent. To this day, there are still hundreds of thousands of stateless Dominicans, who are subject to deportations to a country they’ve never lived in and are unable to access the education system.

Humphrey said that this sort of outcome goes precisely against the intention behind the 14th Amendment, which was to eliminate the sort of racial hierarchies in U.S. citizenship that were the basis for infamous Supreme Court decisions like the 1857 Dred Scott case, in which the court ruled that neither slaves nor free Black Americans were citizens.

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The problem would also extend to people who may not know who their own parents are, and thus would be unable to establish whether or not their parents were citizens and, in turn, unable to prove whether or not they are citizens.

Michael Morley, a Florida State University law professor, underscored that this underclass of noncitizen residents would be increasingly vulnerable following a favorable decision for Trump as well. He expects that the rights of noncitizens would be next on the docket for the conservative legal movement if they are successful in the current birthright citizenship case.

One possibility, according to Morley, is that if the Supreme Court invalidates birthright citizenship, it could mean that children of undocumented people who are born in the United States will themselves be undocumented. Morley specifically said that he believes Plyer v. Doe, a case guaranteeing immigrants the right to attend public schools, would be the next court case conservatives attempt to overturn.

“Such a ruling would likely place greater pressure on Plyler v. Doe, where a sharply divided Supreme Court held that the Constitution requires states to provide the same free public education for undocumented children as they do for citizens,” Morley said.  “Should the Government prevail in Barbara, I would expect plaintiffs to target Plyler shortly thereafter. A few states are considering laws that would help gin up such challenges.”

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