Trump promises end to automatic birthright citizenship

Former President Donald J. Trump announced today that he would issue an Executive Order to refuse automatic birthright citizenship to children, born on American soil, to aliens who are not lawful residents. This includes the children of illegal immigrants and the children of hotel guests and similar transients.

The Trump announcement

Trump made his announcement in an “Agenda 47” video, according to Breitbart. He also has a new campaign account on Twitter (not his original account), and announced it there:

Trump accused President Joe Biden of “launch[ing] an iilegal foreign invasion” of America, in the persons of illegal immigrants. The apparent centerpiece of that plan, according to the former president, is “birthright citizenship.” Per that policy, any child born in the United States, regardless of circumstance, is a citizen of the United States. As such they become eligible for a wide variety of government benefits, many of which inure to their parents also. That constitutes “a reward for breaking the laws of the United States” and an incentive to try to get in.

He also criticized a practice many call birth tourism, in which pregnant women book hotel stays in American cities, stays coinciding with their “Estimated Dates of Confinement.” They then have their babies in American hospitals – and can someday claim American citizenship, with all its “privileges and immunities.”

Trump also asserted that very few countries in the world allow automatic birthright citizenship based solely on place of birth. Under his order, at least one parent would have to be a citizen for a baby thus born, to qualify.

Reality on the ground

Birth tourism is a real concern. A DuckDuckGo search revealed two medical practices advertising package deals, including one in El Paso, Texas. This practice actually speaks of scheduling prenatal care at home, then continuing with the El Paso practice as delivery approaches. Another practice appears to offer a comprehensive package, to include apartment and hotel booking and the assistance of an affiliated travel agency for visa processing. This company offers “birth tourist” services throughout the United States and Canada.

The U.S. State Department, on January 23, 2020, ordered consuls to deny B non-immigrant visas to anyone whom the consuls have “reason to believe” are traveling mainly to give birth in the United States. The current enforcement status of that order is not clear.

The site Nomad Capitalist lists thirty-one countries – including the United States – that offer automatic birthright citizenship. Oddly enough, that site does not list the United States as a particularly attractive “birth tourist trap.”

Nor does this announcement represent any “new thinking” or “late to the party” entry. Trump proposed ending birthright citizenship as part of a comprehensive immigration reform plan during his 2016 campaign.

One Twitter user pointed out that countries that once offered automatic birthright citizenship have since revoked it.

Debate on the law

Judge Andrew P. Napolitano opined that neither Trump nor any other President could end birthright citizenship. He based that on the Fourteenth Amendment, which reads in relevant part:

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, according to “Judge Nap,” Constitutionalized jus soli (Law of the Soil) as a governing and unbreakable pathway to citizenship. Further to the text, one Supreme Court “case on point” exists: U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). The Court held, according to Cornell Law School’s Legal Information Institute, that:

citizenship as prescribed in the Fourteenth Amendment extends to U.S.-born children of foreign subjects or citizens who, at the time of the child’s birth, are permanent residents and are carrying on business in the United States.

The LII hosts the opinion in HTML form here. Note that the opinion specifically excluded the children of foreign diplomats. (Furthermore no precedent exists for granting citizenship to the children of occupying enemy soldiers. But that has never been a consideration, even during the War of 1812.) CNAV previously analyzed that case here, while also observing that Napolitano never cited that case to support his argument.

In February 2005, then-Rep. Nathan Deal (R-Ga.) introduced his Citizenship Reform Act to deny birthright citizenship to children of parents who are not themselves citizens or permanent lawful resident aliens. That Act did not pass.