Wisconsin AG: Trump’s birthright citizenship ban takes away ‘fundamental right’ from kids

Wisconsin Attorney General Josh Kaul says the Constitution protects birthright citizenship for all children born in America, regardless of the legal status of their parents. 

Earlier this month, Kaul and Democratic Gov. Tony Evers announced the state would be joining a multistate lawsuit challenging Trump’s executive order banning birthright citizenship for children born of parents “unlawfully present” in the country.

On WPR’s “Wisconsin Today,” Kaul said Tuesday that Trump’s birthright citizenship ban is “clearly unconstitutional” because of the 14th Amendment. 

“On top of that, there are Supreme Court opinions interpreting that language that are inconsistent with the Trump administration’s position,” Kaul said. “And there’s federal law that provides that kids who were born in the U.S. are citizens.” 

“The Trump administration is clearly acting unconstitutionally and unlawfully,” Kaul continued. “And in doing so, they’re taking a fundamental right away from kids who are born in Wisconsin and other states. So, we have to take action here to protect the rights of those kids who will be born in Wisconsin.” 

Last week, a federal judge temporarily blocked the executive order. Trump is vowing to appeal the decision. 

On “Wisconsin Today,” Kaul talked more about why Wisconsin is joining the lawsuit and what comes next.

The following was edited for brevity and clarity. 

Rob Ferrett: There’s been an argument in some conservative legal circles that if someone is “undocumented,” they’re not complete subjects of the United States, therefore that part of the 14th Amendment doesn’t apply to them and their kids born here shouldn’t be citizens. What do you say to that argument? 

Josh Kaul: Well, that argument is inconsistent with over 100 years of U.S. Supreme Court precedent. It’s also inconsistent with the history of the 14th Amendment. The 14th Amendment was passed in response to the Dred Scott decision, which is widely considered to be the worst, or at least one of the worst decisions in U.S. history. And it contradicted a long-standing principle that there was natural-born citizenship in the U.S. The 14th Amendment specifically reversed that with this very clear language. 

That notion that they’re not subject to the jurisdiction of the U.S. just doesn’t hold up. And again, it’s inconsistent with Supreme Court precedent. If the president wants to take an action that’s inconsistent with the Constitution, the process for that is to amend the Constitution. What you have here instead is Donald Trump and his administration trying to place themselves above the Constitution and above the law, and that’s just not how our system of government works. 

RF: What would be the harm to Wisconsin that would make a court take a challenge from Wisconsin seriously?

JK: Right now, if a child is born in the U.S., we can safely assume that that child is a citizen. This order would require us to set up a whole apparatus for determining whether somebody is a citizen, and in turn, whether they’re eligible for various programs in the United States. The states would have to put in place a new system and spend resources making these assessments. There would be costs to states around the country. They’re also essentially requiring, if this goes into effect, that agents of the federal government and the states take actions that are unconstitutional and unlawful. 

RF: In another lawsuit, a judge appointed by Republican Ronald Reagan put a hold on the executive order. That’s not the end of the road for that challenge or this one. What is next?

JK: In our case, we will be seeking an order just like was issued in the other case, blocking this from going into effect. If that order is issued, then there’s a high chance that this will go through the appeals process. And whether it gets to the courts of appeals or, ultimately, the Supreme Court, will depend on how litigation proceeds … But that process will play out over the next several weeks, initially, and then probably months or years before we get a final resolution. 

RF: The Supreme Court in recent years has shown itself open to changing past court precedents. Do you have a concern that if it does reach the Supreme Court, they might go back and say, “No, the Supreme Court in 1898 got this completely wrong”?

JK: I think that’s part of what’s going on here with what the Trump administration has done. It’s trying to get the Supreme Court to fundamentally change the interpretation of the Constitution. But the language of the Constitution, again, is perfectly clear. The 14th Amendment says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. I don’t think we’re going to see the Supreme Court go so far as to ignore the clear language of the Constitution.

And it’s important to note, too, that this is a real challenge to the authority of the courts. What the Trump administration is saying here is that despite what the Constitution says, despite what federal law says, and despite what U.S. Supreme Court precedent says, we’re going to ignore all of that and decide that the law means something different based on our own, unprecedented, really, interpretation of the law. I’m hopeful that we will see the court step in, but this will be a key test of how the courts are going to respond to the Trump administration.