Sorry, Republicans: Ending Birthright Citizenship Would Be UnconstitutionalThe very amendment that conservatives want to "fix" stands as a shield against government-sanctioned discrimination.
Cristian Farias
Legal Affairs Writer, The Huffington Post
Posted: 08/19/2015
CREDIT: AP PHOTO BY JUSTIN HAYWORTH
Key figures in the crowded Republican field have spoken loud and clear about their desire to do away with birthright citizenship for the children of immigrants.
Donald Trump went a step further Tuesday when he said in a CNN interview that children born to immigrants under the present constitutional order "do not have American citizenship."
In other words, the citizenship they were born with is invalid, a notion Trump said he'd be willing to "test out" in a court of law.
But one needs not go that far.
It turns out that the very idea of amending the Constitution to end birthright citizenship for the children of immigrants -- a move that squarely targets Latinos -- would probably be found unconstitutional. The same would be true for a Republican-backed bill with a similar goal that's pending in Congress.
The reason these proposals would be found unconstitutional is rooted in the very thing Republicans are attacking: the 14th Amendment of the U.S. Constitution.
Because for all the provisions and principles that the 14th Amendment stands for -- and birthright citizenship is only one of them -- one of the amendment's cornerstones is its promise of equal treatment for everyone.
"No State shall ... deny to any person within its jurisdiction the equal protection of the laws," says the last part of Section 1 of the amendment, also known as the Equal Protection Clause. The Supreme Court has ruled that the clause applies to states and the federal government alike.
Over the years, the clause has been read broadly to mean that no government entity can pass a law that singles out or discriminates against anyone on the basis of their race, national origin or other protected characteristic. It generally means that no official action can treat people differently because of who they are.
That is the principle the Supreme Court has upheld in a number of historic rulings -- from Brown v. Board of Education in 1954 to Obergefell v. Hodges, June's historic gay marriage case.
In the latter, the court applied the 14th Amendment's Equal Protection Clause to invalidate a number of state bans on same-sex marriage, which the court found denied gay couples' right to "equal dignity in the eyes of the law." That is, those bans put them on unequal footing with everyone else.
This concept covers Latinos, too. The Supreme Court long ago ruled that equal protection of the laws applies fully to them -- in a little-known case that, as history would have it, was decided mere days before the landmark Brown ruling. The court has also ruled that equal protection applies to undocumented immigrants.
As a result of this and other precedents, federal courts can and will scrutinize any law or ordinance specifically targeting Latinos. And judges will be punishing in their review, applying a stiff constitutional test known as "strict scrutiny."
"Strict scrutiny, like a Civil War stomach wound, is generally fatal," wrote Supreme Court reporter Adam Liptak in a recent New York Times article. The specifics are complex, but all that basically means is that most discriminatory laws will simply fail under the test.
So if any of the GOP proposals to strip immigrant children of birthright citizenship make it into law, it won't be long before they are challenged in court and, ultimately, found unconstitutional.
Lawsuits under the 14th Amendment can be messy, and one would hope that anti-immigrant sentiment never reaches a point that federal courts have to get involved. But if past cases have taught us anything, we can rest assured that the judiciary won't let the likes of Rep. Steve King (R-Iowa) run roughshod over the Constitution with ideas that purport to fix it.
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