Legal Experts Question State's Immunity Claim

The state of Texas can't hide behind sovereign immunity to escape a lawsuit for denying birth certificates to U.S. citizen children of undocumented immigrants, the director of the University of Texas' Transnational Worker Rights Clinic said Tuesday.

That state's claim of immunity is mere "boilerplate," said Bill Beardall, who also serves as executive director of the Equal Justice Center, and the lawsuit against the Department of State Health Services should proceed.

“The state filed a standard boilerplate response that states and state officials always file in these lawsuits,” Beardall said. “This is a form of discrimination.”

The agency was sued in May by a group of undocumented immigrants whose children have not been issued birth certificates even though they were born in Texas and hold U.S. citizenship. The families claim the state has violated the 14th Amendment’s Equal Protection Clause because it stopped accepting consular IDs and foreign passports as proof of the parents’ identities. 

In a response last week, Attorney General Ken Paxton argued that the agency enjoys sovereign immunity under the 11th Amendment and cannot be sued in federal court.

A spokesperson for the DSHS referred all inquiries to the attorney general’s office, which declined comment because the case is ongoing.

Attorneys for the plaintiffs are preparing their response, and predict more plaintiffs will join the lawsuit. The suit was amended in June and now includes 17 families, but that number could grow by eight or 10, attorney Efren Olivares said.

“This isn’t the first time a state has been sued for violating the federal Constitution, so there are arguments and case law that support the possibility of suing the state,” he said.

While some sovereignty claims have merit, Beardall said, U.S. Supreme Court case law includes precedents that private parties can sue state officials in their official capacities to enforce federal rights. 

Michael Gerhardt, a professor of constitutional law at the University of North Carolina’s School of Law, said states often reply to lawsuits with an 11th Amendment argument. “It doesn’t necessarily mean it’s illegitimate, but it also doesn’t necessarily have merit,” he said.

Instead, it could be a part of what he calls the state’s “rich judicial history” that could influence how the case moves forward. He cites specifically Plyler v. Doe, the case where the Texas Legislature’s attempt to deny undocumented students access to public education was rejected by the Supreme Court. In essence, Gerhardt said, the court decided that the children should be admitted and not punished based on something their parents had done.

“It’s not hard to extrapolate from that that someone born in this country [is] going to be, presumably, a U.S. citizen,” he said. “In this case you’re talking about a federal right, and states cannot deny a federal right.”