‘It’s going to be like they don’t exist’: Birthright citizenship issue looms large in Lane County

Soon-to-be parents have plenty of questions.

For those in the United States without authorization – or those here as legal, temporary visitors — a new one has emerged: Will their child be born a U.S. citizen?

“I feel like I couldn’t provide an answer,” Joel Sati, an assistant professor of law at University of Oregon School of Law, said when asked how he’d respond if a mother- or father-to-be posed the question.

“It’s somebody’s child, it’s somebody’s life, and I think being in a position where you are kind of in a very precarious position, I don’t know if I’d be like ‘Expect this, or expect that,’” Sati said. “I think things can change on a week-to-week basis.”

Despite birthright citizenship being the law of the land for more than 150 years, the uncertainty arises from a U.S. Supreme Court decision June 27.

The justices did not issue an opinion about birthright citizenship, though many now think that’s likely to happen.

Instead, the court’s June 27 ruling effectively ended the legal basis for a restraint on a White House executive order redefining the basis for citizenship.

In a decision with implications that extend beyond the issue of birthright citizenship, the Supreme Court limited nationwide injunctions, which federal judges in various states issued in response to objections over several executive orders. The Supreme Court ruled on the use of those injunctions to specifically block an executive order by President Donald Trump on birthright citizenship.

The decision made clear that the executive order could not take effect until 30 days after the June 27 ruling, and Sati said alternative legal efforts, such as class-action litigation, are expected to try to find an alternative way to block the order.

After the ruling, Trump remarked on birthright citizenship, which he said “wasn’t meant for people trying to scam the system.” The June 27 ruling “lets us go there and finally win that case,” he said.

Estimates on the number of births to unauthorized parents vary, but in 2018 the Pew Research Center published data suggesting that about 6% of all U.S. births were to unauthorized immigrant parents, or about a quarter of a million births.

The number likely varies by state, and more recent population estimates from Pew show that Oregon has roughly 120,000 unauthorized immigrants, or about 3% of the population.

In Lane County, total births averaged close to 3,000 in recent years, according to state data.

The numbers mean that possibly 90 births each year in Lane County are to unauthorized immigrant parents, although the actual number could be significantly more or less.

‘Like they don’t exist’

Some of those children already born possibly have been cared for by Densi Axume, 38, who works as a childcare provider to English- and Spanish-speaking parents.

In Spanish, Axume said she’s been following the news about the possible end of birthright citizenship.

“I have faith in God that this isn’t going to happen,” Axume said Thursday. But she said she’s worried about children who might be born in the U.S. without citizenship.

“What citizenship are they going to have? Where are they going to be from?” Axume said. “When they try to get a passport, they won’t be able to. When they look for work, they will struggle. The person won’t be in the system, if you know what I mean. It’s going to be like they don’t exist.”

So far, Axume said, she hasn’t gotten questions from parents about the possible changes. She doesn’t think there are very many women in the Eugene area who would be directly affected by such a change — “that’s my consolation,” she said – but if they are, “it’s a very serious situation.”

Axume referred to fearful times for migrants. Stepped-up federal enforcement of immigration laws has been criticized by some for denying due process rights to detainees, with street demonstrations in Eugene and elsewhere opposing the practices as well as others under the Trump administration.

“The Latino community is not happy with all of this, and neither is the American community,”

Densi Axume

“The Latino community is not happy with all of this, and neither is the American community,” Axume said. 

Nationwide, however, one recent poll found that about half of all American adults believed that birthright citizenship should be granted to the children of parents who migrated to the U.S. illegally, with the other half opposed to birthright citizenship in that circumstance.

Some advocating for the local Latino community were quick to condemn the idea of eliminating birthright citizenship.

It’s a “devastating time in my community,” said Juan Carlos Valle, founding president of the Lane County council of the League of United Latin American Citizens.

Valle, speaking just hours after the announcement of the June 27 ruling, said he was disappointed but not surprised.

He described the ruling as a way “to inject even more fear into our communities who are already defenseless.”

Alonso Oliveros, a program associate with Oregon Project Voice and the American Friends Service Committee, said the organization works with nonprofit organizations in Lane County to advance immigrant rights.

“This decision is an affront to constitutional rights, common sense, and the well-being of our communities,” Oliveros wrote in an email the day of the June 27 ruling.

He added: “We will continue to work with our local partners and communities in Oregon and across the country to challenge both unjust immigration policies and authoritarianism more broadly.”

‘Reinventing slavery under another name’

Garrett Epps, professor of practice at the University of Oregon School of Law after retiring from a long career as a full professor at UO and the University of Baltimore School of Law, wrote a book about the 14th Amendment to the U.S. Constitution, “Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America.”

The 14th Amendment, ratified in 1868, states, among other things, that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Trump’s executive order emphasizes the phrase “subject to the jurisdiction thereof” as a basis for changing the meaning of birthright citizenship. In public remarks, Trump has described the 14th Amendment as addressing injustice against former slaves and providing rights to the newborn children of slaves, thereby reversing an 1857 decision known as Dred Scott, an enslaved Black man who unsuccessfully sued for the freedom of his family.

Epps said he disagreed with Trump’s narrow interpretation of the 14th Amendment’s “Citizenship Clause.”

“This particular change that Trump is attempting to impose by executive order is about as flat of a contradiction of the Constitution as anything we have ever seen,” Epps said in a phone interview.

In an email, Epps wrote that it is “insupportable to claim, as Trump did in the wake of the decision, that it applied only to ‘babies of slaves.’”

“Honestly, it’s reinventing slavery under another name, because they can’t go anywhere else – they’re stateless.” Garrett Epps
professor of practice at University of Oregon School of Law

According to Epps, the framers of the amendment “were seeking to return American law to the place it was before Dred Scott, when the law was that any child born in the U.S., except for children of diplomats, was by birth a citizen.”

In a phone interview, Epps said ending birthright citizenship would effectively strip away many rights from those directly affected. He gave, as an example, working conditions, citing the practice of using child labor in some industries.

“If you can take away the rights of individuals by taking away their citizenship, you will have the capability to exploit them in a much more ruthless fashion,” Epps said.

“Honestly, it’s reinventing slavery under another name, because they can’t go anywhere else – they’re stateless.” Epps said of children who might be born in the U.S. without citizenship status.

Sati said he expects the U.S. Supreme Court will ultimately decide to accept a case and directly rule on the issue of birthright citizenship. But it might be one or two years before such a final ruling happens.

In the meantime, Sati said he expects the legal battle to block the executive order to continue through what’s known as class-action litigation. Also, some news reports since the June 27 decision have described federal judges finding other ways to rule that effectively block actions by the Trump administration.

In March, Sati gave a talk to the City Club of Eugene about birthright citizenship. Asked how he thought the U.S. Supreme Court might ultimately rule on the issue, he hesitated before predicting a close 5-4 ruling in favor of keeping birthright citizenship as it has been practiced for more than 150 years.

“I’d still come to the same conclusion,” Sati said Wednesday. “I might be less sure of it, though.”