an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The term “undocumented” generates a lot of heat in the current immigration debate. I understand the argument of those who feel that this word is problematic because it elides a key distinction: it’s not just that this group of people have lost their paperwork—it’s that they have no legal right to be in this country. That is, indeed, a real distinction. It is also a distinction that some, including the State of Texas, seem determined to undermine. When you take away access to crucial documents such as birth certificates from people who have a right to them, you can create new and strange categories of effectively “undocumented” people, in the literal sense of the word.
Texas recently decided to make it much more difficult for U.S. citizen children of parents here illegally to obtain birth certificates. For some of these children, it is now impossible. Under the United States Constitution, these children are citizens of the United States. On paper. But they don’t have the paper. And so, functionally, they are essentially stateless.
The Texas Department of State Health Services has created this new category of what I would call “undocumented citizens” by revising its interpretation of a comparatively obscure set of state regulations concerning what documents a parent needs to present in order to obtain a birth certificate for his or her child. Under the new interpretation, two crucial documents that used to work to establish the parent’s identity—a photo identification card issued by the Mexican Consulate known as a “matricula consular,” and a Mexican passport that lacks a valid visa stamp—no longer count as valid identity documents. A Department spokesperson argues in comments to news reporters that these documents are not “secure” and might be used for “fraud” or “identity theft.” They offer no explanation for why the policy changed*—at least not in the news stories or anywhere else I have seen.
In a lawsuit being heard in federal district court today in Austin, a group of Mexican and Central American parents of U.S. citizen children are challenging the new policy, on various grounds including that it violates the Fourteenth Amendment’s guarantee of birthright citizenship. This is a tricky argument, because of course, these parents’ children are—in theory—definitely citizens, and DSHS does not argue otherwise. But citizenship is of limited value if you can’t get the documents you need to prove it.
According to the facts alleged in the complaint, the lead plaintiff, Maria Isabel Perales Serna, fled an abusive husband from Mexico to Texas as a young adult. She has a 14 year old (born in Texas, whose birth certificate she obtained under the old policy, by presenting her matricula from the Mexican consulate). In 2014, she had a second child. She took the following documents to the Vital Statistics office in McAllen, Texas: her matricula, her Mexican passport, and the hospital birth records she was given when the child was born. Vital Statistics rejected these documents and would not give her a birth certificate. The lack of a birth certificate means her child has not been able to enroll in day care or in Medicaid (the Medicaid story is more complex; people do enroll in Medicaid without birth certificates but that did not work in this case, leading to large unreimbursed medical costs). Most fundamentally, when you live near the border, you often pass through border checkpoints, even if you never leave the U.S. Serna alleges that she has been repeatedly stopped by U.S. border patrol agents at these checkpoints who have “questioned her actual relationship with [her younger child]” and “warned that the hospital birth papers . . . were inadequate and that she must obtain a birth certificate at once.”
It’s a little hard to say exactly who the Texas DSHS thinks is committing “fraud” or “identity theft” by showing up with her baby’s hospital birth records, her own Mexican passport, and an additional Mexican consular document, all showing that she is the baby’s mother, in an effort to obtain someone else’s birth certificate. But apparently the prospect of this fraud is serious enough to interfere with large numbers of children’s fundamental rights. Some of the parents of older children named in the complaint have had trouble enrolling their children in school without a birth certificate; one was told the birth certificate had to be produced within 30 days, but later school officials decided to allow the child to continue in school during the pendency of this lawsuit. Meanwhile, the Mexican consulate, while protesting loudly that it is not Texas’ role to interfere with relations between the United States and Mexico, has apparently taken new measures this year to increase the security of the matriculas. However, these “new” and ostensibly more secure matriculas are not being accepted either.
The plaintiffs’ lawyers in this suit, from Texas RioGrande Legal Aid and the Texas Civil Rights Project, are not sure why Texas changed its policies. But they surmise that it has something to do with the influx of families from Central America seeking asylum who showed up in Texas a year ago. Other observers have linked the change to state-level opposition to President Obama’s executive actions on immigration that were announced last fall; still others have linked the policy change to talk in national Republican party politics about the “problem” of the Fourteenth Amendment’s birthright citizenship guarantee, the problem of so-called “anchor babies,” etc. That last connection may be unfair. But you have to admit, it would be a pretty canny strategy, if you can’t amend the substance of Section One of the Fourteenth Amendment, to do it in with procedure. Texas DSHS explains that of course it is happy to issue birth certificates to parents of any nationality or immigration status for their Texas-born children. As long as they show the right documents.
This story may be a harbinger of a new front opening up in the war over immigration—one closely parallel to a related set of fights in the voting rights field. I am thinking of the long series of battles about what documentation must be shown to vote, and then about what one must do to obtain a driver’s license or a voter ID card in a state like Alabama or Texas. In Alabama, the state recently closed all the Department of Motor Vehicles offices in a number of counties, including every county in the state whose registered voters are over 75% black. It is impossible for this not to have an effect on which poor citizens in those counties are able to vote.
It is early days on this sad new front. But I wonder if those pushing the new restrictions may be overplaying their hand. The end result of a series of fights about state rules restricting access to essential documents almost cannot help but be a series of court decisions constitutionalizing the rules and procedures for obtaining those documents—rules about simple state functions like issuing birth certificates to parents that have heretofore not been the subject of federal constitutional litigation. Depending on how courts rule in these cases, the federal constitutional constraints may be relatively loose or relatively strict. But I would be surprised if the federal courts are really willing to allow major substantive rights of United States citizen children to be undermined by procedural roadblocks put in place by state and local governments.
Thus, the end result of these shenanigans is, ironically, almost certain to be an expansion of federal constitutional rights into what has until now been a minor but classic area of state autonomy: issuing official documents. Because when you take what was a largely ministerial function—issuing birth certificates when a baby is born—and turn it into a mechanism for restricting who is able to prove their U.S. citizenship, you are literally making a federal case out of it: You are making immigration policy, you are playing in international relations with half the governments of Central and South America, and you are subverting—sotto voce—a core provision of Section One of the Fourteenth Amendment. I am not sure what more you could do if you were bound and determined to provoke an expansion of federal power and federal constitutional law into a whole new sphere—one where nobody realized until now that federal protections were needed. But it seems they are needed, and Texas is doing its best to make that obvious.
*The parties to the lawsuit dispute the extent of the policy change. DSHS argues that they have had a longstanding policy of not accepting the matricula consular. The plaintiffs say this policy began in 2013 but was enforced only sporadically until about a year ago.