If you’re in the U.S. illegally, you don’t have a right to be here, and the government can deport you.
But that’s a federal responsibility, and there’s a strong legal argument (known as the “preemption doctrine”) that states have no authority to enforce immigration laws. This bears on whether Trump can enlist state and local police to carry out his mass deportation plans.
And if you’re a child of illegal immigrants who was born in the U.S., you’re a U.S. citizen, and this means you can neither be detained nor deported just because your parents are illegal immigrants — at least, not legally, nor without violating your constitutional rights.
Trump seems to think he can revoke so-called “birthright citizenship” by executive orders, but the 14th Amendment’s citizenship clause really isn’t open to flexible interpretation — at least, not by honest judges — and any such directive should (and I’ll assume is likely to be) blocked by court order.
So, assuming America’s courts won’t turn a blind eye to wholesale violation of U.S. citizens’ constitutional rights, any detention of a U.S.-born child of deportable immigrants potentially can give rise to a civil rights lawsuit against the police.
I say “potentially” because federal authorities may be insulated from civil liability by sovereign immunity, in which case the only remedy for illegally-detained children of immigrants likely would be Congress approving compensation. Good luck with that.
But state and local police are a different story. They have ZERO federal immunity from lawsuits. If they participate in immigrant roundups, and detain U.S. citizens who’ve committed no crime because of who their parents are, they’re wide open to civil rights lawsuits.
And an organized effort by civil rights lawyers to protect these children from Trump administration overreach would send a clear message to non-federal police agencies that they can’t afford to risk the potential legal liability of helping to round up immigrant families.