President Donald Trump has said since
his first administration that he wants to end birthright citizenship, a
constitutional right for everyone born in the United States.
This
week he issued an executive order that would eliminate it, upending
more than a century of precedent. On Thursday, however, a federal judge
temporarily blocked it after 22 states quickly mounted a legal
challenge.
Over the years the right to citizenship has been won by
various oppressed or marginalized groups after hard-fought legal
battles.
Here’s a look at how birthright citizenship has applied to some
of those cases and how the Justice Department is using them today to
defend Trump’s order.
Citizenship for Native Americans
Native
Americans were given U.S. citizenship in 1924. The Justice Department
has cited their status as a legal analogy to justify Trump’s executive
order in court.
Arguing that “birth in the United States does not
by itself entitle a person to citizenship, the person must also be
‘subject to the jurisdiction’ of the United States.” It raised a case
from 1884 that found members of Indian tribes “are not ‘subject to the
jurisdiction’ of the United States and are not constitutionally entitled
to Citizenship,” the department said.
Many scholars take a dim view of the validity of that analogy.
It’s
not a good or even new legal argument, said Gerald L. Neuman, a
professor of international, foreign and comparative law at Harvard Law
School. “But it’s got a bigger political movement behind it, and it’s
embedded in a degree of openly expressed xenophobia and prejudice.”
Some say the legal analogy to the citizens of tribal nations plays directly into that.
“It’s
not a valid comparison,” said Leo Chavez, a professor and author at the
University of California, Irvine, who studies international migration.
“It’s using the heat of race to make a political argument rather than a
legal argument.”
“They’re digging into old, archaic Indian law
cases, finding the most racist points they can in order to win,” said
Matthew Fletcher, a professor of law at the University of Michigan and a
member of the Grand Traverse Band of Ottawa and Chippewa Indians.
“There’s nothing sacred in the Department of Justice. They’ll do
anything they can to win.”
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