US Supreme Court
Sandra Rierson teaches Constitutional law at Western State College of Law.
The Fourteenth Amendment provides that “[a]ll 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.” This language was intended to – and does – guarantee birthright citizenship in this country. In other words, every person who is born within the territorial boundaries of the United States is a United States citizen, regardless of their parents’ citizenship status, race, ethnicity, religion, political affiliation, or anything else. The only significant exception to this rule relates to diplomats and their children. Under the concept of diplomatic immunity, the diplomat owes allegiance to his or her home country, not the United States, and therefore is not “subject to the jurisdiction” of this country and is immune from criminal prosecution. Children of immigrants – documented or undocumented – do not have diplomatic immunity and can be prosecuted if they commit crimes. For a fuller explanation of why and how the Fourteenth Amendment guarantees birthright citizenship, see here.
Although President Trump apparently believes that the Fourteenth Amendment does not mean what it says, very few academics, and even fewer judges, agree with him. District Judge John Coughenour deemed Trump’s executive order, which purports to end birthright citizenship, “blatantly unconstitutional.” To date, no judge has ruled otherwise. Academic critiques of birthright citizenship, which have widely rejected, have focused on the meaning of the words “subject to the jurisdiction thereof.” These critics argue that people who lack legal immigration status are not “subject to the jurisdiction” of the United States, because they deliberately violated federal law in placing themselves within the borders of the country without the government’s consent. These critics do not argue that undocumented people are immune from criminal prosecution in the United States (they aren’t). They also do not explain why the actions of a parent should determine the fate of a child. The babies of undocumented immigrants born in the United States did not deliberately violate any laws – in fact, as with all babies, they have zero say in where or to whom they are born. The theory is also ahistorical, contrary to the common law, Supreme Court precedent, the history of the Fourteenth Amendment, and the plain language of the Constitution. For all of these reasons, it is a loser argument. The Department of Justice surely must be aware of this fact, even if President Trump is not.
Perhaps for this reason, the federal government sought to attack procedure, not the merits of the case, in its application for a stay in Trump v. Casa, Inc. Casa represents three consolidated cases, all of which challenge the constitutionality of the birthright citizenship executive order. In Casa, Inc. v. Trump, the plaintiffs are two advocacy organizations, joined by individual plaintiffs who either have or will have babies whose citizenship status would be thrown into question by the executive order. The other two cases were filed by 22 states, including California, claiming direct injuries as a result of the executive order’s attempted elimination of birthright citizenship. The stay granted by the Supreme Court does not decide, or even address, the constitutionality of the executive order. Instead, it tackles the propriety of the nationwide or “universal” injunctions issued in the underlying cases. The district courts in these cases temporarily enjoined enforcement of the executive order nationwide, not just for the individual plaintiffs in the underlying cases. Writing for the majority, Justice Amy Coney Barrett concluded that in doing so they exceeded their authority under the Judiciary Act of 1789.
On its face, Justice Barrett’s opinion may not seem to be unreasonable. Due process of law generally provides that a court has the power to bind only those who are parties to the case before it. However, in cases like this one, where the district court has held that the underlying law (here, the birthright citizenship executive order) is facially unconstitutional – unconstitutional as applied to anyone anywhere, not just under the specific facts of this case – modern courts have regularly enjoined the government from enforcing such laws, as to anyone (subject to appellate review). The Supreme Court did not get involved when district courts issued universal injunctions to block enforcement of multiple Biden Administration policies (e.g., vaccine mandates) and those of previous administrations. Regardless, the 6-3 majority opinion does so here.
In assessing the impact of Justice Barrett’s opinion in Casa, it is important to note what it does NOT decide. Challenging the universal injunctions issued in these cases is just one aspect of the government’s procedural assault on the Fourteenth Amendment’s guarantee of birthright citizenship. The other two procedural attacks are based on standing – specifically whether states can sue to block the executive order – and class action certification. The Casa opinion does not decide either of these issues. According to the federal government, the only proper way to challenge this executive order is one child at a time, with each decision having no impact on anyone other than the individual plaintiff, at least until a higher court decides the case.
The federal government has argued that the 22 state plaintiffs do not have standing to challenge the constitutionality of the executive order. Although these states have alleged they will suffer financial loss and administrative burden if the federal government rewrites the Fourteenth Amendment in the manner the order directs, the underlying constitutional rights being violated are those of the babies who would potentially be rendered stateless or their parents, not the states themselves. The doctrine of third-party standing generally allows a litigant (here, a state) to sue to enforce the constitutional rights of a third party in limited circumstances, especially when there are practical barriers that would prevent the third party from filing the lawsuit themselves. Here, it is easy to see why the vast majority of undocumented parents would not have access to legal counsel or the resources necessary to file a lawsuit challenging the constitutionality of a federal executive order. The Supreme Court’s decision in Casa does not decide this issue, although Justice Alito’s concurrence characterizes third-party standing as a “loophole” that could potentially undermine the majority decision. The doctrine of third-party standing is likely to increase in importance as a result of Casa, as the unavailability of nationwide injunctions, except in class action cases, will make lawsuits on behalf of individuals much less efficient vehicles for challenging federal government policies.
The real upshot of the Casa ruling is likely to be more class action litigation, particularly in cases challenging the birthright citizenship executive order. Under Federal Rule of Civil Procedure 23, a federal court can certify a person to act as a representative of a class of similarly-situated people. Justice Barrett’s majority opinion in Casa recognizes the existence and validity of Rule 23 class action litigation, although Justice Alito’s concurrence again characterizes it as “loophole” that should not be lightly invoked. In reality, the cases that have been filed on behalf of individual plaintiffs challenging this executive order are exactly the kind of cases for which Rule 23 was designed. Rule 23(b)(2) provides for class certification when the “party opposing the class [here, the federal government] has acted … on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Although the Supreme Court has issued various decisions making it harder to satisfy Rule 23 in certifying a class, these decisions generally involve class actions seeking money damages, not solely injunctive or declaratory relief. The federal government will be on shaky legal ground in arguing against class certification in these cases. The Fourteenth Amendment applies equally to everyone, and it needs to mean the same thing in every state, for every child born in this country. Immediately after the Supreme Court issued its Casa decision restricting the use of universal injunctions, a new lawsuit was filed on behalf of a nationwide class of plaintiffs, Barbara v. Trump. On July 10, the district court judge in that case granted the plaintiffs’ motion for class certification and for a preliminary injunction blocking enforcement of the birthright citizenship executive order. More class action litigation is likely to follow.
Birthright citizenship is a foundational pillar of American democracy. It is embedded in the United States Constitution, and it cannot be eliminated by a federal statute or an executive order. President Trump’s attempt to do so has been and should continue to be rebuffed by the courts. Whether the procedural vehicle for doing so is a universal injunction, a lawsuit filed on behalf of states, or a nationwide class action, the Constitution must be upheld.
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