WASHINGTON — The U.S. Supreme Court’s birthright citizenship ruling yesterday could serve as both a help and a hindrance to efforts by the Trump administration and GOP lawmakers to implement stricter immigration laws.
First the hindrance: Yesterday’s ruling striking down a federal birthright citizenship law because it discriminated on the basis of gender is bad news for the prospect of the court upholding President Trump’s revised travel ban.
As lower appellate courts blocking Trump’s order have cited, the president’s broad immigration powers are not unchecked by the Constitution’s ban on discrimination. Yesterday’s high court ruling, albeit on different facts and involving a law passed by Congress, essentially upheld that same principle.
“Generally speaking, it is an important affirmation from the court that it has a duty to examine the constitutionality of federal laws, even the nationality and immigration arena,” said Sandra Park, senior staff attorney with the American Civil Liberties Union Women’s Rights Project.
Now for the silver lining for the tough-on-immigration set: The court’s ruling could actually make it easier for Republicans to target an issue that could serve as red meat for some in their political base — birthright citizenship.
The decision struck down a law imposing drastically different residency requirements for foreign-born single mothers who had become U.S. citizens and sought to pass citizenship on to their children than for single fathers or married citizens seeking to do the same. A mother needed only to have lived in the United States for a year during her lifetime, whereas fathers would have had to have spent 10 years here, and at least 5 of those years after the age of 14. The law has since been amended, but a gender difference remains.
The plaintiff, who faced deportation due to several felony convictions, claimed that the law unconstitutionally discriminated on the basis of gender because had his mother been the U.S. citizen instead of his father, his citizenship would be clear.
The court agreed that the law was unconstitutionally biased, but didn’t give the plaintiff the result he wanted. Instead, in a decision written by Justice Ruth Bader Ginsburg, the court said the remedy was for Congress to fix the law and nix the gender-biased provision. In the meantime, the court ruled, unmarried mothers and fathers will be subject to the same residency requirements — the tougher one once reserved for single dads.
That gives Republicans who have been critical of birthright citizenship two advantages. The court not only temporarily toughened the rules, but gave the GOP-controlled Congress an open invitation from the U.S. Supreme Court to change laws governing birthright citizenship, a prime opportunity for them to impose even further restrictions.
It’s unlikely that lawmakers can eliminate birthright citizenship entirely without a constitutional amendment, but U.S. Rep. Steve King (R-Iowa) has already filed bills taking aim at it to the extent congressionally possible — a move Trump backed on the campaign trail. If enough GOP lawmakers can back the effort — a big if — it could ultimately give Trump a small political victory in the shadow of a likely major defeat on his travel ban.
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