On Tuesday morning, the Supreme Court upheld birthright citizenship in a 5-4 decision, striking down President Donald Trump’s executive order that sought to limit automatic citizenship to children born in the United States with at least one parent who is either a U.S. citizen or a legal resident.
In response to the decision, Professor Jacobson wrote, “[Chief Justice John] Roberts’ Opinion, joined by [Associate Justice Amy Coney] Barrett and the liberal block, fully embraces birthright citizenship for all. Children born to women illegally or temporarily in the country ‘are citizens at birth.'”
Ultimately, the only permanent solution may be a constitutional amendment clarifying that birthright citizenship does not extend to the children of those who are in the country illegally or only temporarily. Given the Constitution’s demanding amendment process — which requires a two-thirds vote in both chambers of Congress and ratification by three-fourths of the states — that outcome appears highly unlikely in today’s deeply polarized political climate.
With a constitutional amendment all but out of reach, the Trump administration’s most practical option is to aggressively enforce the laws already on the books against birth tourism and the visa fraud that often accompanies it.
Hours after the Supreme Court announced its decision, Deputy Attorney General Colin McDonald issued a memorandum to Department of Justice employees citing several examples of “birth tourism schemes,” in which foreign nationals have exploited birthright citizenship to secure U.S. citizenship for the children of paying clients.
The memo read (in part):
The Department of Justice will investigate and hold accountable those who engage in this unlawful conduct, as well as those who solicit and sell these criminal services to others. I am directing all United States Attorneys and the Criminal Division to work with the Department of Homeland Security to prioritize the investigation and prosecution of birth tourism schemes.The Department of Justice will zealously protect the sanctity of United States citizenship by investigating and prosecuting those who fraudulently exploit our immigration system. Together, we will bring illegal birth tourism to an end and those responsible to justice.
Acting Attorney General Todd Blanche elaborated on the DOJ’s efforts to crack down on birth tourism during a Wednesday afternoon news conference. He said the agency would be “focusing our prosecutors and our law enforcement partners on birthing tourism and it’s a booming industry.”
He told reporters:
There’s more that DHS can do and the federal government can do in the visa process and the application process to try to minimize or limit the opportunity of folks coming here not to visit, not to do what they say they’re going to do on their Visa, but just to have a baby that can be a U.S. citizen.So everybody should agree that it’s a violation of our laws if your intent in coming here is to have a child to become a United States citizen. … So what we have to do at the Department of Justice is to make sure our agents and our HSI [Homeland Security Investigations] agents that we work with and the FBI are focused on stopping that and that’s what we’re going to do.
As McDonald noted in his memo, “the benefits of U.S. citizenship require little explanation.” If they did, there would be no market for birth tourism. The promise of American citizenship has long been valuable enough that some foreign nationals are willing to spend tens of thousands of dollars and travel halfway around the world to obtain it for their children.
Beyond the immediate immigration concerns, birth tourism also raises potential national security questions. A U.S.-born child receives citizenship at birth and, decades later, may be eligible for positions involving sensitive government, defense, or technology work. Most will never pose a threat, of course. But it is not difficult to imagine hostile foreign governments, particularly the Chinese Communist Party, viewing birth tourism as one more way to gain long-term access inside the United States.
“U.S.-style birthright citizenship is uncommon around the world,” according to the Pew Research Center. The organization recently reported that most countries in Europe, Asia, and the Middle East instead tie citizenship to a parent’s nationality or legal residency. Only 32 other countries — most of them located in the western hemisphere — have laws that grant automatic citizenship to nearly everyone born on their soil.
The DOJ’s new crackdown makes clear that the administration has no intention of letting the issue end with Tuesday’s ruling. If the Court has preserved birthright citizenship in its broadest form, then the executive branch appears determined to use every tool at its disposal to protect U.S. national security interests, enforce the law, and keep Americans safe. The DOJ will target the fraud and abuse that have grown up around birthright citizenship which is both reasonable and necessary. American citizenship is one of the most valuable legal statuses in the world. Protecting it from exploitation should not be controversial.
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