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I’m not the only one who thought the state’s response to the birth certificate lawsuit was specious

Actual legal experts didn’t think much of it, either.

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.”

[…]

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.”

See here and here for the background. The plaintiffs will file their response shortly, and the state will then respond to that response. I presume we’ll get a better idea of what their real argument is then. In the meantime, more plaintiffs are expected to join the suit. I suspect there’s no shortage of them to be found.

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