An attorney who teaches immigration law at Illinois State University expects the U.S. Supreme Court will ultimately uphold automatic birthright citizenship.
Matt Kuenning, who practices law in Champaign, says a New Hampshire judge's ruling to certify a class-action lawsuit will reduce the harm caused by the Trump administration's executive order.
“And then we’ll be back to the laws that always has been,” Kuenning said in an interview on WGLT’s Sound Ideas. “The question is how much confusion and other harm will be caused in the meantime.”
Kuenning said if this case or similar cases go before the U.S. Supreme Court to give the court another chance to weigh in on birthright citizenship, he said the court could still sidestep the larger issue, either by declining to take the case or just deciding whether the plaintiffs merit class action designation.
Kuenning said if the court ultimately takes on birthright citizenship again, he can’t see a legal argument for striking down what’s enshrined in the 14th Amendment and has been upheld in legal precedent.
“The Constitution is clear. The statutes passed by Congress are clear. The practice of the executive branch of the federal government for 125-plus years up until this past January has been clear,” Kuenning said. “Those things combined make is overwhelmingly obvious that Trump’s executive order is illegal.”
Kuenning is referring to the 1898 case of the United States vs. Wong Kim Ark. In that case, the court ruled citizenship is automatic at birth for anyone born in the United States, unless they were the children of diplomats or hostile foreign actors occupying U.S. territory.
In the amendment’s wording, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States,” the Trump administration has contended “subject to the jurisdiction thereof” creates a legal opening.
“The [executive] order is obviously a misinterpretation of that phrase,” Kuenning said.
He said if Trump's executive order were to be enforced, it would be impossible for each undocumented family of a child born in the U.S. to go to court to prove their citizenship.
As for the earlier Supreme Court ruling that struck down universal injunctions, Kuenning said there should be standards to govern when a lower court judge can issue such a ruling.
