The Supreme Court’s ruling limiting nationwide injunctions has added confusion around what comes next for birthright citizenship across the country, including New Hampshire. Legal experts are still poring over the decision.
Here’s what we know.
What does the decision mean for New Hampshire?
The court’s ruling ordered that the injunctions in suits challenging the order only apply to the 22 states where the state itself is part of the suit – including nearby Connecticut, Massachusetts, Maine, Rhode Island and Vermont.
New Hampshire and 27 other states could see the birthright citizenship ban go into effect starting July 27, since they did not sue the federal government to stop the Trump administration’s executive order.
What’s happening in New Hampshire right now?
One of the legal pathways to challenge the executive order the Supreme Court left open was to file a class action lawsuit on behalf of anyone that might be affected by it.
In response to the ruling, the ACLU of New Hampshire and other groups did just that, petitioning to create a class of babies subject to the executive order and their parents. If the court approves the class, they would likely be eligible for additional protections while the lawsuits are decided.
“Every court to have looked at this cruel order agrees that it is unconstitutional,” said Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project and lead attorney in this case. “The Supreme Court’s decision did not remotely suggest otherwise, and we are fighting to make sure President Trump cannot trample on the citizenship rights of a single child.”
New Hampshire’s Attorney General’s office did not sign onto a suit, like neighboring New England states did earlier this year, and it remains unclear if they will with this new ruling.
The offices of the Attorney General and Gov. Kelly Ayotte did not return multiple requests for comment from NHPR.
What does this new case argue?
The complaint argues that all children that might be affected by this order are considered a class, including a New Hampshire resident only identified as “Barbara” in the complaint.
She is an asylum seeker from Honduras who is expecting her fourth child. She is not sure if the baby will be eligible for citizenship under the executive order, since it would prohibit citizenship documents to be issued to babies born to undocumented immigrants or parents with lawful, but temporary status.
In her affidavit, Barbara said she wants her baby, due this fall, “to have access to opportunities, such as access to education and permission to work legally, in order to make a life for themselves. I also want my child to be safe. I do not want my child to live in fear and hiding.”
“I do not want my child to be a target for immigration enforcement,” she added.
The groups filing this lawsuit say since the Supreme Court’s decision narrowed which injunctions are applicable, some children could potentially be left without protection.
In a status conference hearing Monday, federal district court Judge Joseph LaPlante asked the Department of Justice to provide assurance the government would not remove or deport members of the calls before July 27.
“That’s my understanding of the executive order,” replied Brad Rosenberg, an attorney with the DOJ.
A hearing in the case for an expedited preliminary injunction for nation class-wide relief is scheduled for Thursday, July 10.
What does this mean for the previous case filed in New Hampshire?
Earlier this year, a federal judge in New Hampshire had granted a preliminary injunction in a case brought by the ACLU of New Hampshire and the Dover-based non-profit Indonesian Community Support.
It granted them temporary protection until arguments can be heard in early August. The ACLU of NH says the Supreme Court’s decision doesn’t impact the merits of the case or the injunction issued.
What are some local advocates saying?
Trump’s order focuses on one clause of the 14th Amendment in particular that says that citizenship applies to babies born in the U.S. and “subject to the jurisdiction” of the U.S.
Until now, that phrase has been interpreted by Congress as applying to all babies born in the U.S. – with some exceptions for children born in the U.S. to foreign diplomats and a few other cases.
To Minister Ray Ealy from the New Fellowship Baptist Church of Nashua, birthright citizenship is a sensitive topic for anyone of African descent. He explained that it was originally created to make sure that enslaved Black people were considered as citizens and later went on to apply to children of immigrants. Moving forward, he said he was worried about how citizenship might be politicized to end dissent.
“I don't want anybody being able to tell any person here that they're not a citizen,” he said. “We all should have the same citizenship, and there should be no group above any other group. And once we do that, we sully what America is.”
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