States Have the Power to Hold Federal Agents Accountable by Allowing People to Sue Them for Rights Violations

WASHINGTON — The Supreme Court heard oral argument today in Trump v. Barbara, a nationwide class action brought by the American Civil Liberties Union, ACLU of New Hampshire, ACLU of Maine, ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus, and the Democracy Defenders Fund on behalf of children who would be denied citizenship under an executive order issued by President Trump. The groups presented arguments challenging the administration’s efforts to dismantle birthright citizenship — the legal principle guaranteed by the 14th Amendment that babies born in the United States are U.S. citizens — highlighting how Trump’s executive order flouts the Constitution’s dictates, longstanding Supreme Court precedent, a statute passed by Congress, and fundamental American values. Courts have uniformly blocked the Trump administration from implementing the executive order. A Supreme Court decision is expected by the end of June or early July. The following is comment from the co-counsel in this case: “All of us born in this country are Americans, as guaranteed by the 14th Amendment. That is the principle we defended before the United States Supreme Court today,” said Cecillia Wang, ACLU national legal director, who argued the case before the court. “I left the courtroom thinking about my parents and so many families who came here seeking refuge, opportunity, and the American way of life. We couldn’t be more confident that this unlawful, un-American executive order will be struck down.” “Today’s argument before the Supreme Court was on behalf of the countless families who would be harmed, especially children and families of color, if the Trump administration’s birthright citizenship executive order takes effect,” said Morenike Fajana, senior counsel at the Legal Defense Fund. “We are confident in our case against such an unlawful attempt to rewrite the Constitution in a way that is antithetical to who we are as a nation.” “Birthright citizenship was affirmed in United States v. Wong Kim Ark, when a Chinese American community challenged the idea that people like them could never fully belong. For Asian Americans, that history is deeply personal — it is a right we helped shape and defend,” said Aarti Kohli, executive director at Asian Law Caucus. “Trump’s executive order attempts to erase that legacy, denying families the dignity, stability, and belonging that the Constitution guarantees to every child born in this country. We’re fighting today to ensure that in our democracy, no president gets to re-define who is born a citizen and who is not.” “Birthright citizenship has been clearly protected for well over a century by the plain text of the Constitution, Supreme Court precedent, and congressional enactment. An attack on this indisputable right is an assault on the Constitution itself,” said Amb. Norm Eisen (ret.), co-founder and executive chair of Democracy Defenders Fund. “If this indisputable legal principle is up for grabs, so is anything in the Constitution and American law. That cannot be the case and so birthright citizenship must stand.” “Our Constitution and the more than a century of court decisions on this topic are overwhelmingly clear: no politician can decide who among those born in this country is worthy of citizenship. We are fighting this cruel executive order to ensure that every child born in the United States has their right to citizenship protected instead of being relegated to a permanent, multigenerational subclass of people born in the U.S. but who are denied full rights,” said SangYeob Kim, director of the Immigrants’ Rights Project at the ACLU of New Hampshire. “Birthright citizenship is a cornerstone of our democracy, deeply rooted in the American legal tradition and enshrined in our Constitution,” said Carol Rose, executive director at the ACLU of Massachusetts. “The 14th Amendment and centuries of precedent categorically reject the maintenance of a permanent underclass. No good-faith reading of the law can hold otherwise. That is why we are asking the Supreme Court to unequivocally reject the Trump administration's unlawful attempt to strip away the fundamental American guarantee that every baby born in this country is equal.” “Birthright citizenship has been the law of the land since the 14th Amendment was enacted in 1868,” said ACLU of Maine Executive Director Molly Curren Rowles. “It is a core reason that the United States has been seen for generations as a beacon of freedom and opportunity around the world. Successive waves of immigrants have shaped and reshaped every aspect of our society and culture, from the food we eat and the music we listen to, to our regional accents and religious practices. As Americans, we are bound by our values and commitment to a pluralistic, free society — not by our family heritage. We hope a decision in this critically important case can bring stability at a time when immigrant families across the country face increasing hostility, threats, harm, and uncertainty.” More case background is here.

WASHINGTON — Yesterday, President Trump announced his plan to attend today’s Supreme Court arguments in Trump v. Barbara, a nationwide class action brought by the American Civil Liberties Union and partners on behalf of children who would be denied citizenship under Trump’s executive order. ACLU Executive Director Anthony D. Romero had the following response: “If President Trump wishes to come to the Supreme Court to watch the ACLU school him in the meaning of the Constitution and birthright citizenship, we will be glad to sit alongside of him in that very court. “Any effort to distract from the gravity and importance of this case will not succeed. The Supreme Court is up to the task of interpreting and defending the Constitution even under the glare of a sitting president a couple dozen feet away from them. “This is one of the most important cases in the last hundred years. The outcome of this case will very well decide the rights and liberties of over 200,000 children born to immigrant parents each year. The 14th Amendment guarantees that children born in the United States are citizens. Period.”

The ACLU is at the Supreme Court for oral arguments in Trump v. Barbara. Follow live coverage of the fight to defend birthright citizenship.

PHILADELPHIA — Today, Mahmoud Khalil’s legal team asked the full Third Circuit Court of Appeals to re-consider the three-judge panel’s 2-1 decision overturning a lower court’s orders releasing Mr. Khalil on bail and barring the government from detaining or deporting him based on Secretary of State Marco Rubio’s vague and unsupported assertion that Mr. Khalil’s lawful protected speech would “compromise a compelling U.S. foreign policy interest.” The panel decision would effectively block anyone in immigration proceedings from challenging their detention on First Amendment grounds in federal court until those proceedings are complete, no matter how long they may take or how unconstitutional the basis for their detention. “There is no world in which Mahmoud should be torn away from his family for a second time and sent back behind bars for his protected speech,” said Brett Max Kaufman, senior counsel in the ACLU’s Center for Democracy. “In this country, the government cannot punish people just because they don’t like what they have to say, and it is imperative that federal courts are immediately available to halt unconstitutional detentions. That’s what the district court did here, and we think those orders should and will be upheld in the end.” Back in June, the court found that Mr. Khalil was likely to succeed on the merits of his constitutional challenge to his detention and attempted deportation on the Foreign Policy Ground, and it ordered his release on bail based on the extraordinary circumstances of his detention, including the government’s failure to produce any evidence of flight risk or dangerousness. A federal judge granted Mr. Khalil’s request for a preliminary injunction after concluding that he would continue to suffer irreparable harm if the government continued efforts to detain and deport him on the basis of Secretary of State Marco Rubio’s determination. In January, two judges on the Third Circuit panel ruled that the lower court’s order should be overturned, without evaluating the merits of his constitutional claims, but because they held the federal court did not have jurisdiction to even consider ordering Mr. Khalil's release for the months or years his immigration proceedings remained ongoing. However the third judge, the Honorable Arianna Freeman dissented, concluded that under Third Circuit and Supreme Court precedent, a federal court can hear Mr. Khalil’s “now-or-never claims” because without immediate federal review, Mr. Khalil will suffer irreparable harm from detention that cannot be remedied after the executive branch’s own administrative immigration process runs its course. As Judge Freeman further explains, the majority opinion “renders meaningful review hollow," and “only this habeas petition can provide Khalil meaningful review of the First Amendment harms from his detention.” The Trump administration and Department of Homeland Security (DHS) illegally arrested and detained Mr. Khalil in direct retaliation for his advocacy for Palestinian rights at Columbia University. Shortly after, DHS transferred him 1,300 miles away to a Louisiana detention facility — ripping him from his then eight-months pregnant wife and legal counsel. During the 104 days he remained in ICE custody, Mr. Khalil missed the birth of his first child. “Federal courts must have the power to step in when the government exploits our country’s immigration system to punish people for their protected speech,” said Bobby Hodgson, Assistant Legal Director at the New York Civil Liberties Union. “This case goes to the heart of what the First Amendment protects: if the Trump administration can target, arrest, and deport Mahmoud for his speech, they can do it to anyone expressing an opinion they disagree with.” Earlier this month, Mr. Khalil’s legal team filed an appeal with the Board of Immigration Appeals (BIA), which is controlled by the Department of Justice, asking that it reverse a lower immigration court’s unprecedented decision to sustain a baseless, after-the-fact charge related to his green card application and asking that it terminate the proceedings entirely. As detailed in their appeal, this charge was retaliatory and only added after Mr. Khalil challenged the government’s violations of his constitutional rights. Mr. Khalil is represented by Dratel & Lewis, the Center for Constitutional Rights, CLEAR, Van Der Hout LLP, Washington Square Legal Services, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the ACLU of New Jersey, and the ACLU of Louisiana. For all case materials, please see here, here, and here.