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The Battle for Birth Certificates: Is Denying Them To Children Of Undocumented Immigrants Constitutional?

Ken Paxton asked a federal judge to dismiss a lawsuit brought by 17 families. Here’s why that probably won’t happen.

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Ken Paxton’s had a busy month. The state attorney general has made national headlines for everything from his encouragement of county clerks to flout the Supreme Court to felony allegations that could potentially land him in prison. But even with all of that, he’s thrown himself into the middle of a burgeoning legal battle over Texas’s failure to issue birth certificates to the children of 17 undocumented immigrant families. Yesterday, Paxton asked a federal judge to dismiss the case brought up against the Texas Department of State Health Services. The families and their counsel are arguing that their children are automatically afforded citizenship under the 14th Amendment. Paxton is arguing that under the 11th Amendment, the DSHS has sovereign immunity and cannot be sued in federal court.

What’s the conflict here? 

Well, it’s a bureaucratic mess.

The undocumented immigrants who are suing the DSHS are correct in that under U.S. Constitution, their children should not be denied citizenship. In fact, under the 14th Amendment, there are two possible arguments working for them: the Citizenship Clause states that anyone born in the U.S. is granted automatic citizenship. Pretty cut-and-dry. This kind of allowance makes sense in a place like the U.S., where nearly four million children are born each year. Denying these children birthright citizenship would mean extra costs for parents and bureaucratic agencies.

On top of that, the families involved in the lawsuit argue the 14th Amendment’s Equal Protection Clause shields them from discrimination under U.S. law.

But the DSHS says it can’t issue birth certificates because of the forms of identification families are required to present. Most undocumented immigrants have the matricula consular, an ID provided by the Mexican government to nationals living outside the country’s borders. Here’s DSHS press officer Chris Van Deusen’s statement to the Texas Observer earlier this month on why the state agency will not accept it:

“DSHS accepts a variety of documents to verify a requestor’s identification … Texas does not accept the matricula consular as valid identification because the documents used to obtain the matricula are not verified by the issuing party. Several other states and some federal agencies also do not accept the matricula as a valid form of identification for the same reason.”

The problem is, many undocumented mothers from Mexico are not going to have identification other than their matriculas. And so, they argue, by refusing to accept this form of identification, the DSHS is violating the Supremacy Clause of the Constitution, effectively taking immigration law into its own hands rather than letting it be managed at a federal level.  

What kind of precedent is there for this lawsuit? 

Many speculate that this particular case of the DSHS denying birth certificates is a response to the recent influx of Central American families. Just about every Congress since 1993 has tried to pass a bill that would exclude children of undocumented non-citizens in the U.S. from birthright citizenship. None have passed, but there are certainly many lawmakers and others who advocate for the denial of birth certificates to children of undocumented immigrants, especially in border states like Texas and Arizona. But some argue that for birthright citizenship to be denied, it would mean changing the Constitution.

At the state level, in 2010, the Arizona legislature tried to pass a bill that would “deny birth certificates to children born in the United States to illegal immigrant parents.” The bill died, and critics argued that had it been passed it would have been in immediate danger of stirring up a lawsuit, not dissimilar to the one happening in Texas right now.

The DSHS is following internal policy, not state law. And critics argue that the policy was not made clear to the public and directly infringes on constitutional rights. The question of whether federal law can change who is and is not born into U.S. citizenship or if such a change needs to be written into the Constitution is one for another day — one when legislation is on actually on the table. In the meantime, a federal judge will soon decide whether to dismiss this case per Paxton’s request, or to hear it and take a closer look at if DSHS is acting constitutionally.

(AP Photo/Eric Gay)

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