President Trump has long been fixated on birthright citizenship, the longstanding constitutional guarantee that nearly all children born on American soil are automatically American citizens. In his first term, he floated the idea of ending birthright citizenship through executive fiat. And on the first day of his second term, he signed an executive order seeking to do just that, carving out new exceptions including children born to parents who are in the United States either temporarily or without legal status. The executive order was immediately challenged, and last month, the Supreme Court struck the order down in a 6-3 vote.
Writing for the majority, Chief Justice John Roberts made clear that birthright citizenship as we have come to know it over the past 150 years is here to stay. “Citizenship, then and now, was the right to have rights — to freely participate in our political community,” Roberts wrote. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
And yet, despite the court’s decision, Trump has still not accepted that citizenship is a near-universal birthright in the United States and is still looking for ways to undermine it. “I will be asking for a Rehearing by the United States Supreme Court, IMMEDIATELY. This miscarriage of justice will destroy America if they don’t change their absolutely insane decision,” Trump said in a recent social media post. The chances that the Supreme Court will take up Trump’s request are very slim: The last time the Court agreed to rehear a case was in 1965, and the last time it reversed a decision based on a rehearing was in 1956.
But Trump’s insistence that the United States can somehow do away with birthright citizenship without passing a constitutional amendment has only prompted more efforts by politicians and activists on the right. Earlier this week, Republican Sen. Jim Banks, of Indiana, introduced legislation to redefine birthright citizenship. And right-wing commentators have attacked Justice Amy Coney Barrett, whom Trump appointed in 2020, for voting with the majority, calling her a “DEI hire” and demanding that she be removed.
The right’s effort rests on flimsy legal arguments — and flimsy factual ones, too. To hear Trump’s allies tell it, the citizenship clause is routinely taken advantage of by so-called “birth tourism” — that is, pregnant women coming to the United States on a tourist visa so that they can deliver their babies and automatically guarantee them citizenship. In his post asking for a rehearing, Trump claimed that “Signs and Billboards are being put up all over our Southern Border, and Mexico, advertising BIRTHRIGHT CITIZENSHIP, with ‘Deliveries starting at $4000.’”
This argument doesn’t make sense from a legal or practical standpoint.
The language of the citizenship clause in the 14th Amendment is plain and simple: “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’s why the narrow exceptions to the birthright citizenship clause include the children of foreign diplomats and occupying armies — people who are not subject to US jurisdiction. People who are in the United States either temporarily or unlawfully, on the other hand, are still subject to US jurisdiction.
Moreover, “birth tourism” is not such a significant immigration problem that it should prompt the Supreme Court to entirely redefine birthright citizenship. It’s undeniable that some children born in the United States are indeed born to tourists. In many cases, it’s not planned. For example, Folarin Balogun, the soccer player who played on the US men’s national team in the World Cup, was born in New York after his mother, who was visiting the United States, was prevented by an airline from flying back to London because she was too far along in her pregnancy. (Despite his criticism of birthright citizenship, Trump still intervened in controversial fashion to get FIFA to reverse the red card a referee gave to Balogun.)
But the overall number of babies born to tourists is incredibly small. According to researchers at Penn State, only 0.3 percent of US births can be attributed to birth tourism. If the US government still finds that to be a problem, then it can tackle it through tightening visa rules and go after cases of visa fraud — rather than ending birthright citizenship as we know it — just as the Obama, Biden, and Trump administrations have in the past.
No matter how conservatives feel, birthright citizenship is enshrined in the Constitution, and the Supreme Court has again made clear that the text means exactly what it says. Citizenship is a promise to every person born in the United States — one that, as Roberts says, the country intends to keep. If Trump or Republicans want to change how we define citizenship, then they will have to make that case to the American people and pass a constitutional amendment.
Boston Globe, July 20
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