Birthright Citizenship in a Lone Star State of Mind

I have previously blogged about a contentious remark from the last Republican Presidential Debate.  The catalyst of that conversation about Birthright Citizenship was what I deemed to be a certain candidate’s peculiar (and misleading) over-simplification of what he views to be current U.S. Law’s abhorrently liberal stance on Birthright Citizenship.  Specifically, I underlined in the course of that blog-entry that the conferral of “automatic citizenship” to a child is perhaps not as “liberal” as some of the candidates would portray it to be.  For example, I explained that in no instance can a child not born in the United States (be it even to two U.S. Citizen parents) automatically, in all instances, be guaranteed citizenship – not very liberal, huh?

As it turns out, those candidates who stated a desire to expressly curtail Birthright citizenship, to strip children of unlawfully present persons their right of citizenship, may not just have been whistling dixie…

Enter the erstwhile Republic of Texas – the state that, above all, has been front and center in presumably desiring to take immigration law into a stone age of sorts.  In my coverage of the DAPA fiasco, the reader will have noticed that the State of Texas is the marquis Plaintiff against the DAPA Executive Action.  Not to be messed with, Texas is at it again.

Texas’s Department of State Health Services (“TX DSHS”) is the state agency responsible for issuing birth certificates to children born in that state.  Procedurally, after birth the Texas hospital of the child’s birth presents a provisional document to the child’s parent which the parents must then present to TX DSHS who should then produce a birth certificate.  The catch is, the parents seeking to obtain the formal birth certificate from TX DSHS must present their own identification.  Texas has legislated a limitation of those documents that the DSHS will accept as proof of parental identification.  These statutory proofs of identification have been separated into 2 categories: 1. [Primary Identification] e.g. Permanent Resident Cards, Work Authorization Cards, etc. 2. [Secondary Identification] e.g. social security card, foreign passport but with attached valid U.S. Visa, Mexican voter registration card or other foreign identification card with photo.  See 25 Tex. Admin. Code Sec. 181.28(i)(10)-(11).  However, due to a recent policy directive effectuated by TX DSHS, the agency no longer accepts Mexican voter registration cards or other foreign photo id.  Reading between the lines, this policy change practically means that parents who are undocumented cannot any longer prove their identity for purposes of obtaining birth certificate for their American children.

What has resulted is an absurdity – hundreds if not thousands of U.S. Citizen children, clearly born in the United States, are not being permitted a birth certificate proving this fact because of Texas’s view on the undocumented status of their parents.  Thus, without a birth certificate proving their birthright citizenship, Texas is now creating a class of U.S. born children, without recognizable legal status (or, at least, making that birthright very questionable for lack of a birth certificate).  What undocumented parents do have in the way of identification are (typically) matriculas consular (an identification card issued by the government of Mexico) or Mexican passports (but, of course, having no valid U.S. Visa).  However, Sec. 181.28 does not provide for Texas’s recognition of either.

A legal challenge against this practice has been brought – Serna, et al. v. Texas Dept. of State Health ServicesAllegations made in that Complaint include unconstitutional deprivation of 14th Amendment guarantees of Due Process and Equal Protections of Law, violation of the Supremacy Clause of the U.S. Constitution and a claim that Texas has violated the Administrative Procedures Act’s requirement of notice-and-comment as to the circumstances by which the policy changes to Sec. 181.28 became law.  As the Complaint well points out, Texas is unique in this practice of denying birth certificates on the basis of a parent not being able to present a form of identification proving that the parent is legally entitled to be present in the United States.  Highlights from the Complaint (from a group of mostly mothers who have been denied certificates for their children) include Plaintiffs’ underlining the fact that a valid foreign passport duly issued by a national government is a “internationally recognized identification of the highest formality.”  Complaint at p. 4. ¶ 22.  The Due Process and Equal Protection claims are obviously the strongest arguments to be made by Plaintiffs.  The right to a birth certificate is that of the U.S. born child and Texas policy presently strips the child of that right and liberty without apparent legal justification or hearing.  U.S. born children of persons with lawful status are not treated in so pernicious a fashion by the Texas policy – this case screams Equal Protection violation.  The Supremacy Clause argument I believe is also a meritorious one – be it indirectly.  Texas by its new policies concerning Identification and birth certificates, seem bent on confounding U.S. immigration law and practice – areas solely within the authority of the federal government.

In its defense, Texas has sought 12(b)(6) dismissal for failure to state a claim for which relief may be granted.  Of course, the old rebel yell of “Sovereign Immunity!” permeates Defendants’ response.

I think this may very well prove to be a bell-weather case.  As the government of Texas and its cabal of other disaffected states grow ever-more restless with the federal government’s immigration prerogatives, this writer would not be surprised if other states follow suit, unless, of course, the courts have a thing or two to say about that.  Stay tuned for more coverage of this case!

P.S. Other good coverage of this issue can be found at The New Yorker:

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