The Supreme Court concluded its term at the end of June with two major decisions that affect Martha’s Vineyard’s undocumented immigrants.
Their outcomes were different, but they had in common an attempt by President Trump to enhance executive power over immigration. Both cases demanded answers to a single question: Did the Trump administration use its authority to try to rid the country of nonwhite people, as embodied in expressions of racial animus? If so, courts may always review Executive Department decisions under the Constitution’s equal protection clause.
Concrete evidence demonstrates that President Trump used anti-immigrant, anti-Muslim, anti-Black, and anti-Hispanic language to deter migration of anyone other than white people to the U.S.
In the first case, Mullin v. Doe, a majority of conservative justices allowed the president to end a program called Temporary Protective Status (TPS). Since 1990, this has provided relief to 1.3 million refugees living in the U.S. after the government has determined their home countries are under severe threat due to revolutionary violence, unrest, or natural disasters.
The president has been clear he wants to end or reduce the program to focus on the
immigration of people like white South Africans. A key provision of the law bars courts from
reviewing such a decision. Writing for a six–three majority, Justice Samuel Alito held that
because the law blocks judicial review, the court may not review President Trump’s expressions
of racial hatred.
In an angry dissent, Justice Elena Kagan disagreed. She wrote that there was a clear violation of the 14th Amendment’s equal protection clause when “the president’s statements repeatedly invoked racist tropes of national purity and evinced anti-Black animus.”
Kagan continued, “So here are some of those statements: Haitians are ‘eating the dogs … They’re eating the cats. They’re eating — they’re eating the pets of the people that live in Springfield, Ohio.’ And: Haitians are also eating ‘other things too that they’re not supposed to be.’ And: Haitians in the United States ‘probably have AIDS.’ And: Haiti is a ‘[expletive deleted] country,’ which is ‘filthy, dirty, and disgusting.” And: Haitian immigration is ‘like a death wish for our country.’ And: Haitians, along with some others, are ‘poisoning the blood’ of our country. And: ‘Why is it we only take people from [expletive deleted] countries’ like ‘Haiti and Somalia?’ ‘Why cannot we have some people from Norway and Sweden?’”
Kagan concluded that “it is hard to imagine the statements being made today of any
white community … The statements fairly shout, in their racial undertones and overtones alike,
that race entered into the president’s resolve.”
To date, Homeland Security has removed TPS designation from 10 of 17 countries. Some 45,000 Massachusetts residents hold TPS status, including 20,000 from Haiti, although just two Haitians reportedly reside in Vineyard Haven. Many more live on the Cape. The ruling will have far-reaching effects on many Island undocumented immigrants, given the administration’s animus toward racial and ethnic minorities.
The second decision, Trump v. Barbara, focused on birthright citizenship, which The MV
Times has extensively covered in the past. President Trump signed an executive order on his first day in office last year, declaring that a person born on U.S. soil is not necessarily a citizen, despite what the Constitution provides. By a bare five-to-four majority, the court disagreed. Chief Justice John Roberts ruled in favor of the long-held view that anyone born on U.S. soil is automatically a citizen, as the 1868 14th Amendment declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
Roberts wrote that “citizenship, then and now, was the right to have rights — to freely participate in our political community. The framers of the 14th Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.” For 158 years, the amendment has been understood this way. The Supreme Court reiterated this position in 1898 in United States v. Wong Kim Ark.
But birthright citizenship is in a precarious position because of Justice Brett Kavanaugh’s concurring opinion. He wrote that the 14th Amendment does not confer citizenship on anybody. Instead, he cited an obscure 1940 federal law that did. He added that Congress may “amend” that law or pass a new one “establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”
But a simple congressional act can never override a constitutional provision. Every judge and constitutional scholar has argued that a statute is never superior to the Constitution. So we are left with two cases with different outcomes. One is rooted in racial animus, the other grounded in the Constitution, for now.
Meantime, undocumented residents on Martha’s Vineyard will have to live with the uncertainty and fear that their livelihoods and contributions to the community are in jeopardy.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.