In wake of Trump threat, birthright citizenship at issue again—06-27-23
Immigration news, in context
This is the 157th edition of BORDER/LINES, a newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This edition is not dedicated to a new policy per se but an ongoing discussion of broad public interest; we won’t be dedicating editions consistently to the many immigration proposals that get surfaced throughout the 2024 campaign season, but felt that this was a long-standing and poorly understood enough issue to carefully break down.
This week’s edition:
In The Big Picture, we dissect the history of and new push towards ending birthright citizenship in the United States.
In Under the Radar, we discuss a recent Supreme Court ruling on a challenge to the federal government’s immigration prosecutorial discretion.
In Next Destination, we look at the impending effective date of Florida’s new restrictive immigration law.
The Big Picture
The news: As Donald Trump increasingly dominates GOP primary polling despite many legal and criminal entanglements, including the ongoing federal classified documents case, he seems to be making immigration a signature issue once more. Last month, the former president reiterated an earlier pledge to end birthright citizenship, i.e. the automatic grant of U.S. citizenship to people born on U.S. soil, regardless of the circumstances or their parents’ status. His focus on the issue has brought other GOP contenders into the fold, notably including Florida Gov. Ron DeSantis, who dedicated his whole first big policy rollout to immigration restriction, including a pledge to do away with birthright citizenship.
This has all prompted new waves of hand-wringing around the issue, with commentators trying to explain what is and isn’t legally precedential and how a re-elected President Trump might go about actually attempting to terminate this right in practice. At base, the right is rooted in language in the Fourteenth Amendment, ratified in 1868 in the Reconstruction era, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The right was then more definitively laid out in the landmark Wong Kim Ark v. United States Supreme Court ruling thirty years later, which held that a Chinese-American man who’d been born in San Francisco was a citizen by birth, despite Congress’ efforts to exclude Chinese people from both immigration and citizenship. More broadly, it established this interpretation as precedent. Even at that time, a counter-argument was articulated by the two dissenting justices, and that argument remains the crux of the contemporary legal effort to overturn birthright citizenship.
Generally, this argument hinges on the meaning of the words “subject to the jurisdiction thereof,” and whether that is downstream of the applicability of U.S. laws and jurisdiction to a person, or has to do with that person’s own set of allegiances. Trump never actually attempted to end the right, but if he were to occupy the White House again, this over hundred-year-old precedent might be in the crosshairs.
Under the Radar
Supreme Court allows Biden to implement new ICE enforcement priorities
In an 8-1 vote, the Supreme Court ruled that the Biden administration could implement its limited ICE priorities, which were published in October 2021 but never implemented. In a statement to CBS News, DHS secretary Alejandro Mayorkas said the department looks forward to re-instituting the guidelines after the Court’s ruling.
The new enforcement guidelines emphasized agents’ discretion in both making arrests and attorneys’ discretion in pursuing deportation cases, and prioritized the arrest of people deemed national security threats or those with criminal backgrounds. The priorities also considered mitigating factors and urged agents to consider whether those targeted for enforcement had been put on ICE’s radar after disputes with employers or landlords, stating that agents “must ensure our immigration enforcement authority is not used as an instrument of these and other unscrupulous practices.” People who recently entered the U.S. were also prioritized under the new regulations.
Texas and Louisiana sued the Biden administration after the new guidelines were published, prompting an injunction that prevented them from going into effect. The Supreme Court took on the case last year, and last week, the justices ruled that the states did not have the standing to sue over the guidelines. Writing for the majority, Justice Brett Kavanaugh said the judiciary was “not the proper forum” to resolve this, and argued that allowing this case to proceed would lead to “complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws.”
Next Destination
Florida’s immigration law will soon go into effect
On July 1, Florida will implement a sweeping, restrictive immigration bill that was signed into law by governor Ron DeSantis in May.
The law will, among other things, provide $12 million for DeSantis’s relocation scheme in which migrants are bused or flown from Florida to elsewhere in the country. It will also require businesses with more than 25 employees to use E-Verify, a database that compares employees’ identification paperwork against DHS and Social Security records to verify whether they can legally work in the country. Several states already have E-Verify mandates in effect, but research has repeatedly proven that undocumented workers can get jobs in spite of it. Many employers simply don’t use it despite laws requiring them to. Employers’ reticence to comply with E-Verify underscores the degree to which certain states rely on undocumented labor. Florida had an estimated 775,000 undocumented workers in 2020, comprising 4 percent of the state’s total population and 18 percent of its immigrant population.
Florida farmers have already reported losing employees. Rep. Rick Roth, a Republican member of the Florida House, told NPR that the bill was designed to “scare migrants” and noted that it doesn’t provide funding for enforcement. “I’m a farmer, and the farmers are mad as hell,” Roth said. “We are losing employees that are already starting to move to Georgia and other states.”
Some undocumented Floridans have indeed already fled the state, particularly in farming towns. NBC News spoke with a family who left for Maryland despite having good jobs and stable housing in Florida. “I was well, well, well situated in Florida. I was doing well financially, stable with work. There was no problem,” one said. “Now it’s the opposite.”