Isn't it up to the government to show cause?
Yes, and no. In a hearing for a preliminary injunction, the plaintiffs have the burden of meeting the four prongs of the test used. The judge ruled they met the first -- that irreparable injury was being caused -- by determining that the plaintiffs fundamental rights were being impinged, an automatic irreparable injury. This also invoked strict scrutiny on the second prong -- that the government must have a compelling interest and that the means used are the least restrictive possible. When the judge reviewed this, he determined that the state does have a compelling interest in restricting access to children's birth certificates, and that the rule being used was well researched and not unfairly targeted. The plaintiffs failed to make the case that the government's rules clearly violated the compelling interest case even when considered under strict scrutiny -- and that's a high, high bar and the judge was very thorough.
It might be worthwhile here to discuss a few facts of the case, because the articles I've seen written about it don't clearly show the issue. The issue isn't that children born in the US can't get birth certificates -- they have them, each and every one. It's that the parents cannot later get a copy of the birth certificate because they cannot provide sufficient identification to show that they are qualified to receive a copy of the child's birth certificate. This is a distinction without much effect, though, because not being able to get a copy of the child's birth certificate is essentially like the child not having one at all. However, the main point of contention is that, in 2008, Texas changed the required identification lists to exclude passports without visas (or visa exemptions) and consular identification cards. This, effectively, locks out a group of illegal immigrants because they do not have other kinds of identification that would be accepted. Texas justifies this change by pointing to the lack of tracking for consular identification (although this may have recently changed, it's unclear to what extent), ie, who's gotten one, where they got it, who they were, what documentation they had to provide, etc.. In short, anyone could get multiple consular IDs from multiple consulates and there was no way to find out if they had done so. The passports were an issue because unless they were presented in the office, they could not be verified as valid without a visa. Both of these changes were heavily researched, are followed in other states, and the FBI doesn't consider consular ID or non-visa passport copies to be valid ID either. So that looks like solid, non-targeted reasoning to disallow those identifications for the
purposes of a preliminary judgement where the plaintiff carries the burden.
Here very basic rights of the infant (access to essential services, including possible life critical medical care, and freedom to move about without restriction) are being imposed by the governments strictures on obtaining a birth certificate. I would expect the government would need to show a very clear and specific harm to avoid an immediate order.
The ruling did determine that such harms were occurring, but it also determined that the plaintiffs failed to show that the restrictions placed by the government were unreasonable, had no compelling interest, and were not the least restrictive.
In court, however, the plaintiffs don't carry the full burden and the government will have to do a lot of work to show that this is not the least restrictive method. Given the case presented for the preliminary hearing, though, it's pretty clear that Texas has a compelling interest to restrict identification documentation to only those qualified to receive it. Whether or not this method is the least restrictive, though, remains to be seen.
This seemed to be along the lines of police subjecting folks in a building which was a known crime hot spot to searches, compared with a quarantine of the same building because a tenant was shown to have a highly communicable and deadly disease.
I don't follow this. Are you trying to show the difference between interests? Because you're mixing tests if you are. Subjecting people to searches in a high crime area is an example of the government having a compelling interest to do violate a fundamental right as much as a quarantine of a deadly disease is. However, the searches are not the least restrictive means available to reduce crime (more cops on the beat is) while quarantining a deadly disease may very well be the least restrictive method of meeting the interest. The latter, though, is ripe for a lawsuit if it occurs. If you recall the recent ebola cases in the US and the legal threats and counterthreats around quarantines and the infected and possibly infected? Hot button issue, no idea how a specific instance would fair in court.
