Birthright Citizenship Headed to SCOTUS

For decades, birthright citizenship has vexed Republicans, Democrats, and constitutional scholars. President Donald Trump’s Executive Order described both birthright citizenship’s history and its purpose:

From Trump’s EO, Protecting the Value and Meaning of America Citizenship: “The Fourteenth Amendment states: ‘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.’ That provision rightly repudiated the Supreme Court of the United States’ shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.” Trump’s EO would also deny citizenship to foreign nationals legally but temporarily present in the U.S. such as holders of student, work, or tourist visas.

The heated controversy centers around two Fourteenth Amendment phrases. Supporters of the status quo cite “all persons born or naturalized in the United States” which has come to mean illegal aliens and temporary legal residents. Opponents argue that foreign nationals are not and cannot be considered “subject to” the U.S.’s jurisdiction. Predictably, the ACLU and twenty-two blue state governors and attorneys’ generals immediately challenged the administration’s EO set to be effective in 30 days but would not be retroactive.

When birthright citizenship’s broad scope is considered, the potential negative consequences must be weighed. Start with the 2021-2023 non-immigrant I-94 admissions category to the U.S.---millions of individuals, which includes temporary workers and their families, NAFTA professional workers, specialty occupation workers--mostly H-1B visa holders—and intracompany transfers and their spouses, all of whom could grow or start new families with their children born on U.S. soil automatically becoming American citizens. An estimated 300,000-400,000 citizen children are born each year to mothers who have no legitimate ties to the U.S.

Another temporary visa category, the B, intended for tourism and business purposes, stood at multiple millions total issued between 2021 and 2023. The B visa has spawned the most blatant, egregious federal immigration abuses and stands out as the best example of why birthright citizenship should end. Granting automatic citizenship to foreign nationals’ children is a lure to come to the U.S. to deliver a citizen child. President Trump is right to end this practice because, among its other inherent flaws, the birthright citizenship industry encourages illegal activity and threatens national security. The State Department documented that, based on reporting from U.S. embassies and consulates, trends showed an increasing number of B visa applicants whose primary purpose of travel is to give birth in the U.S.

Birth tourism is a criminal enterprise that involves complex schemes and yields millions of dollars in ill-gotten gains. Shady overseas businesses, approximately 500 in China alone, promote birth tourism on the Internet and on social media. As an example of unlawful activity, on January 31, 2019, federal prosecutors announced indictments against 19 people operating three Southern California birth tourism schemes. The “maternity” or “birthing houses” principals charged their clients tens of thousands of dollars, and, in one case, “more than $3.4 million in international wire transfers” were received within a two-year span.

Operators also coached their Chinese customers on how to lie to U.S. officials and hide their pregnancies. Furthermore, “the indictments allege that many of the Chinese birth tourism customers failed to pay all of the medical costs associated with their hospital births, and the debts were referred to collection.” The charges also included making false statements to immigration officials, contempt of court, marriage fraud, visa fraud, and money laundering. The craven perpetrators fled back to China and are now fugitives from justice.

Because birth tourism, per se, is clandestine, there is no definitive breakdown by country of origin. Evidence points to many birth tourists originate from China, Taiwan, South Korea, Nigeria, Türkiye, Russia, Brazil, and Mexico. Russia and China have long histories of anti-American espionage activities while others may harbor anti-American sentiments. The State Department warned that such a practice could allow foreign governments or entities to recruit or groom U.S. citizens who were born through birth tourism but raised overseas, without attachment to the U.S. could threaten national security.

As anticipated, challenges to Trump’s EO came immediately. The ACLU and twenty-two blue states filed lawsuits. On January 23 in Seattle, a federal judge heard and temporarily blocked President Trump’s executive order. Appeals will eventually reach the Supreme Court, which will have the opportunity to finally resolve the birthright citizenship conundrum. In the meantime, the administration must toughen up. Visa fraud is a crime. Airport Customs and Border Patrol agents should be more aware of pregnant women attempting to enter. ICE agents can visit birth hotels, put the squeeze on the proprietors, demand to see registration and visa documents, and let all criminal parties involved know that immigration authorities are aware of fraud. The bad news that will get back to China that enforcement is looming, a step in the right direction regardless of how the Supreme Court may rule.

Joe Guzzardi is an Institute for Sound Public Policy analyst. Contact him at jguzzardi@ifspp.org