On Promises

First, a story ...

It’s been a big year. I’m ready for summer but have been on edge every day in June as I wait. I had no clue amid my back-to-school nervousness last September that the adjustment to junior high would be the easiest thing all school year. It seems so minor now. In January, ICE arrested my mom when she was getting off a bus in Minneapolis. They didn’t even know her name. Didn’t know she had lived here almost 15 years and had been interrogated when she crossed the border all those years ago before being released. That she had me and my sister and brother here. That grabbing her off the streets without even a chance to tell us good-bye, or trying to explain what happened, would send my little sister into an emotional spiral that only I could calm. My mom was gone until last month, moved between detention centers in three states. A friend from church finally found a lawyer for my mom. They filed something called a “habeas petition” and a judge said that my mom had a “liberty interest.” The judge said the U.S. Constitution protected her ability to live freely unless the government could show she may run away from her immigration hearings or that she was dangerous. My mom won’t and isn’t. She wants to finish her immigration case. We are all a little scared she won’t win but she is going to try. And the thought that my mom is dangerous is laughable. Now my mom carries that paper from the judge with her everywhere, in case someone tries to take her again. It says ICE must tell her 2 weeks before they try to convince a judge to put her back in that crowded detention center she dreams about.

Now that she is back and safe, I can think about myself again. Think about my future. Teachers are already starting to talk about college and I want to study history. I know my mom’s immigration case isn’t guaranteed. That she may lose and get deported. That she will need to take my siblings with her to a country we have never seen. That she will want me to come. I need to go with her. I don’t know what my sister and brother would do without me. But I need to come back to the U.S. It is my home.

That’s why I have been nervous about June. I’m a citizen of the United States of America even though my parents aren’t because I was born here. It says that is how it works in the Constitution. So even if I need to go to a different country with my mom for a few years, I can come home. But the President tried to change that for people like me last year. Now the Supreme Court will say any day now (probably by the end of June!) whether he can do that or not. That’s why I’m scared.

When I first learned about the Constitution in school, I didn’t think it mattered anymore. I had no idea how much it would impact my life. It let my mom come home again. It rescued my little sister and brother, who never stopped crying for mom when they went to bed at night those months she was gone. It lets me breathe again, both in relief for my mom and in the ability to be a kid again.

What the Supreme Court says about the Constitution this month will impact the right of citizenship for thousands of people. The chance for people like me to stay in, or come back to, our homes; to access the freedoms that so many of us Americans brag about; to help build a more perfect union for the tired, the poor, the huddled masses yearning to breathe free: like the poem we had to memorize from the statue of liberty says.

The promises of the Constitution still matter. I’m going to read every word of whatever the Supreme Court writes about my citizenship and I hope you do too.

Second, some thoughts ...

The above is a fictionalized account of one of the thousands of children and teenagers who have been profoundly affected by the violation of their parents’ constitutional rights in the last year. Kyle Cheney and Jessie Blaeser of Politico have been tracking cases challenging ICE’s immigration enforcement and detention and have logged over 13,000 losses for the Trump administration. (Read their article: Explore the data: More than 13,600 rulings against Trump in ICE cases). One strand of these losses consist of habeas petitions like the one described in the story, where a court found the government violated the mother’s 5^th Amendment due process rights by re-detaining her without notice, a hearing, or a finding that she was a flight risk or a danger to society before taking away the most basic of rights: her liberty.

As we prepare to celebrate the Declaration of Independence’s 250^th birthday, it is worth dwelling on its most oft-repeated phrase: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed[.]” Liberty. An unalienable right endowed by one’s Creator (and not dependent on legal status) and that protection of which is one of the reasons governments are formed.

A mother’s right to live outside of a detention center while proceeding through the lengthy immigration system, the timeline of which is often out of the control of the applicant, is not about immigration policy. Recipients of immigration habeas¹ relief still must establish their right to legal status. They still may be subject to an eventual order of deportation. And could be subject to detention if there is a credible and proven reason to believe they are a danger, or will not comply with the requirements of the immigration system (i.e., a flight risk). But if not, the government cannot, and should not, arbitrarily change its mind about whether the person should be incarcerated while that process completes.

Likewise, whether the children born in the United States to parents without legal or permanent status are American citizens is also not an immigration policy question. It’s a constitutional question grounded explicitly in the text with deep implications for thousands of people. Although the current iteration of the executive order challenging birthright citizenship does not apply retroactively (in other words, it wouldn’t take away citizenship from people already born, like the fictional youth above, but would instead apply to those born once it is in effect), it would deprive future generations of the right of citizenship promised to them in the Constitution back in 1868 (the ratification of the 14th Amendment) and could also result in future attempts at retroactive stripping of citizenship rights of many of our current friends and neighbors. Americans should realize this question is not about how they want immigration policy to look.

Instead, it is about keeping the promises our nation has made. Two hundred and fifty years ago the Declaration named some of the values and ideals our new government would protect. Twelve years later the States ratified the Constitution to provide a structure for a “more perfect Union.” Eighty years after that, the nation ratified the Fourteenth Amendment, bearing the words: “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.” Fast forward another thirty years, and the Supreme Court in United States v. Wong Kim Ark rejected attempts to limit the protection of what we now call “birthright citizenship.”

Since 1868, the words of the Fourteenth Amendment have promised citizenship to those born in the United States. Cases like Wong Kim Ark (1898) and Schooner Exchange v. McFaddon (1812) acknowledged that this means citizenship to everyone born on the soil (jus soli), other than the discrete set of circumstances where the person was on the soil but not subject to its laws, as in the case of the child of a foreign dignitary, an invading nation, or (unique to the American context) subject to tribal authority. This promise has been widely understood, respected, and valued.

To the extent Americans want that changed as a matter of policy, there is a way to do that: a constitutional amendment. Without that process, Americans should expect the Court to reject attempts to unilaterally change the right to citizenship guaranteed in the Constitution. Regardless of your policy preference, we should all be glad if/when we see the Court reject the attempt for a president to unilaterally withdraw a promise so dear as citizenship. A promise that is set within a document requiring a careful and complicated process to change (quite a stark contrast to a day 1 executive order). 

When the “birthright citizenship” decision is released later this month and we celebrate Independence Day shortly after, I hope Americans of all political persuasions think about ideals of the Declaration and promises of the Constitution. More directly, I hope they think about girls and boys like the one in the story above. The children that this executive order would impact are our future neighbors and friends. They are beneficiaries of the Constitution’s promises and every bit as entitled to its protections as each of you reading this article. 

The Declaration states: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes[.]” Let me borrow some of that language and say: the Constitution’s promises, clearly established, should not be changed for light and transient reasons. I disagree with the anti-immigration sentiment that inspired both the “birthright citizenship” executive order and the aggressive enforcement that has resulted in so many orders against the government on issues of arrest and detention this year. But even if you do agree with the policy and/or philosophy behind those actions, I urge you to consider the importance of keeping promises. To reflect on the imperativeness of accountability and/or checks and balances when they are broken. 

I’ll return for a moment to habeas. As you may remember, this is the name of the type of case that helped our fictional friend above get her mom back from a detention facility while the mom’s immigration case was proceeding. In the immigration context, it doesn’t guarantee an outcome but rather provides a route to ensure the government “plays by the rules” and keeps the promises our country has made while the immigration system takes its time. Like the right to citizenship for people born in our nation, the write to seek a “writ of habeas corpus” also appears textually within our Constitution. We must honor it as well and uniformly call on elected officials to put pressure against any rumors of attempts to limit it. 

We have much to celebrate for America’s 250th birthday. While the budding nation was far from perfect upon formation in 1776 - just as it is not perfect today - the United States of America has offered many opportunities and refuge. The founding ideals didn’t freeze in time but instead provided rich fodder for growth, empowering so many Americans to help make the country a more perfect union and ensure that the moral arc is bending toward justice. That effort is still ongoing. The “American experiment” continues. Let’s raise a glass for the promises that protect every one of us this Independence Day and stay committed to speaking up in aid of those promises when the need arises. 

1 As an April 29, 2025 memo written by the White House Staff Secretary recently made public (see it here) says: “The Writ of Habeas Corpus is a legal mechanism to challenge unjust confinement, detention, or punishment. . . The history of habeas corpus dates back to the very dawn of English common law. . . The availability of this mechanism to challenge the legality of a person’s confinement became a motivating issue during the American Revolution and during the drafting of the Constitution, as a reaction against the perceived and actual abuses of Brith colonial authorities.”

By Larissa Marie Warren Whittingham, Esq.