Our work to protect the birthright citizenship guaranteed by the Citizenship Clause is nothing new, and last month, CAC submitted an amicus brief at the Supreme Court defending the constitutional guarantee of birthright citizenship. Our brief, filed on behalf of an ideologically diverse group of scholars of constitutional law and immigration, explains that the Framers of the Fourteenth Amendment already considered the same arguments that the Trump administration is now making to try to limit the scope of birthright citizenship and resoundingly rejected them. When Reconstruction-era critics of birthright citizenship claimed that a sweeping, unambiguous guarantee of birthright citizenship would apply not just to newly emancipated Black Americans but also to immigrant communities, the proponents of birthright citizenship retorted that yes, it would. As one supporter of the Fourteenth Amendment movingly explained, the “foundling . . . at your doorstep” who “may never know who gave him birth” was “just as much an American citizen as the Chief Magistrate of the nation.” We explain that the history of the Fourteenth Amendment’s Citizenship Clause offers overwhelming evidence that the promise of birthright citizenship contained in the text of the Citizenship Clause is just as sweeping as it sounds. Our amicus brief was featured in SCOTUSBlog, The Originalism Blog, and Reason magazine as providing crucial arguments among the many offered by legal and historical experts defending the guarantee of birthright citizenship.
And CAC’s work to protect immigrant communities is not limited to pushing back on unlawful Trump administration policies (though that is taking up a lot of our time these days). We also filed an amicus brief in the Supreme Court last month in a case pushing back on a policy that predates this administration of unlawfully turning back asylum seekers at ports of entry (POEs) along the U.S.–Mexico border.
Federal and international laws protect the human rights of people seeking asylum in the United States. In 1980, Congress required the executive branch to establish a process for any person physically present in the country or at a port of entry to seek asylum, and prohibited government officials from sending noncitizens to places where their “life or freedom would be threatened.” According to the government, the laws protecting asylum-seekers do not apply to noncitizens who arrive at a port of entry, but are blocked from entering the country by immigration officers just before they step over the border. It argues that the presumption against extraterritoriality, which provides that laws generally be construed to only apply within the borders of the United States, allows them to ignore the law if an asylum seeker is not technically on U.S. soil.
Our amicus brief explains why this is wrong. The presumption against extraterritoriality is mainly concerned with ensuring that statutes do not reach beyond the authority of the United States. The presumption’s history makes clear that when a nation does have authority over an area, there is no reason to presume that the nation’s laws do not apply there. And this case involves an application of U.S. law to interactions between border officials standing on U.S. soil and asylum-seekers at ports of entry—clearly the subject of the United States’s authority. Together with the No Turning Back coalition, CAC is standing up for the human right to seek asylum.
When our friends, relatives, and neighbors are under attack, it falls on all of us to stand up for the true meaning of the Constitution and federal laws. At the Supreme Court, and in other courthouses from coast to coast, CAC’s unique text-and-history approach is playing a critical role in the fight to ensure that the protections for immigrant communities contained in both the Constitution and federal laws are respected.
