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:
“The 14th 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 executive order would also deny citizenship to foreign nationals legally but temporarily present, such as holders of student, work, or tourist visas.
The heated controversy centers around two 14th 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” U.S. jurisdiction. Predictably, the ACLU and 22 blue state governors and attorneys’ generals immediately challenged the executive order.
When birthright citizenship’s broad scope is considered, the potential negative consequences must be weighed. Start with the 2021-23 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, 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 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 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.
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 Jan. 31, 2019, federal prosecutors announced indictments against 19 people operating three Southern California birth tourism schemes. The “maternity” or “birthing houses” principals charged clients tens of thousands of dollars, and, in one case, “more than $3.4 million in international wire transfers” within a two-year span.
Operators coached Chinese customers on how to lie to U.S. officials and hide 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. Russia and China have long histories of anti-American espionage, while others may harbor anti-American sentiments. The State Department warned such a practice could allow foreign governments or entities to recruit or groom U.S. citizens born through birth tourism but raised overseas, without attachment to the U.S.
Late last month in Seattle, a federal judge heard and temporarily blocked 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. 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 proprietors, demand to see registration and visa documents, and let criminal parties know immigration authorities are aware of fraud. It would be a step in the right direction, regardless how the Supreme Court may rule.
Joe Guzzardi is an Institute for Sound Public Policy analyst who has written about immigration for more than 30 years.
