Minimizing the ‘Grotesque Results’ of the Supreme Court’s Birthright Citizenship Decision

In Trump v. Barbara, a slim majority of the Supreme Court held that the Constitution guarantees birthright citizenship for nearly every child born on U.S. soil, even those born to parents who are in the country illegally or on a lawful but temporary basis. Five justices invoked a historically inaccurate misunderstanding of the 14th Amendment’s citizenship clause that erroneously entrenched one of the nation’s most consequential policy mistakes as a constitutional mandate.

To be sure, Barbara merely cemented the status quo. But, as Justice Samuel Alito warned in his dissent, this status quo creates “grotesque results.”

The question now is how best to minimize universal birthright citizenship’s increasingly harmful impact. The odds of successfully passing a constitutional amendment to correct the Court’s mistake are, realistically, quite slim. The opinion may ultimately, in the words of Justice Clarence Thomas, “fail the test of time” and be overturned by a future Court, but that legal reckoning could take decades.

In our recent legal report for Advancing American Freedom, we detail the policy options that the federal government has at its disposal, even in the absence of longer-term solutions.

The most effective and important response is to prevent scenarios that create problematic claims of birthright citizenship. Federal laws and regulations could employ a two-pronged strategy focused both on reducing opportunities for illegal and temporarily present aliens to give birth on U.S. soil and eliminating the ability of those who do to personally benefit from their child’s citizenship status.

One obvious option is to severely restrict lawful but temporarily present aliens — like tourists, students, and work visa holders — from entering the country if they’re pregnant. Current regulations addressing birth tourism are limited and too easily evaded. Applicants can conceal a pregnancy, promise to leave before delivery but then overstay, or become pregnant during a longer lawful stay. New regulations could require visa denials for pregnant applicants whose unborn children wouldn’t otherwise qualify for U.S. citizenship, or at a minimum, require them to provide proof of concrete plans to leave the country prior to reaching any point of gestation that might result in them giving birth on U.S. soil.

The government could also condition a visa or Visa Waiver Program eligibility on agreements that neither the alien nor the alien’s foreign national spouse will give birth while in the country. Violators could be subject to automatic visa revocation and immediate deportation. They could also be declared permanently inadmissible and thus ineligible for future family-based immigration visas that might otherwise enable them to use their child’s citizenship to their own immigration advantage.

The federal government could, moreover, better induce pregnant aliens who are already here illegally to self-deport by more rigorously restricting the ability of all illegal aliens to open bank accounts, obtain housing, or receive any other government benefits. It could also strongly incentivize them to return to their native country prior to giving birth by declaring that anyone who gives birth while unlawfully present in the United States is, along with their non-citizen family members, subject to automatic removal. Congress could pass a statute depriving courts of any jurisdiction to review such removals.

These individuals could, additionally, be classified as permanently inadmissible and therefore ineligible for family-based immigration visas. This sanction could be enforced by requiring that U.S. citizens who apply to sponsor relatives on family-based immigrant visas provide either proof of naturalization (nullifying concerns over how birthright citizenship was obtained) or proof that the relatives to be sponsored weren’t unlawfully present in the United States when the citizen sponsoring them was born.

Another option is to expand the federal government’s limited policy on the diplomatic exception to birthright citizenship. Existing federal policy excludes U.S.-born children of diplomats from citizenship only when the parents are within a small sub-class of high-ranking accredited diplomatic officers. Yet every year tens of thousands of other embassy and consular employees (and their foreign national spouses) enter the country on diplomatic visas, act on behalf of foreign governments, and receive some form of diplomatic immunity, and their U.S.-born children are still considered citizens.

That policy could be changed to treat all diplomatic visa holders as members of the diplomatic service whose children are not citizens. President Trump’s recent executive order attempts to do just that, though Congress should codify that change to prevent future administrations from reversing course.

To counter courts trying to reject a broader application of the diplomatic exception, the State Department could also condition its acceptance of an ambassador’s credentials on guarantees that the embassy’s foreign national employees won’t be allowed to give birth in the United States. Violators could be subject to severe penalties (automatic visa revocation, deportation, and permanent inadmissibility), while persistent non-compliance from embassies or consulates could result in visa cancellations, denials of future diplomatic visa applications, or even diplomatic expulsion.

Finally, Congress can turn its attention to the four unincorporated U.S. territories (Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands) where birthright citizenship is secured by federal statute, not by the Constitution. It can amend the statutes to specify that children born within these territories only qualify for birthright citizenship when at least one parent is a U.S. citizen or lawful permanent resident.

None of these measures is a substitute for a constitutional amendment or a future Supreme Court decision overturning Barbara. Taken together, however, they offer a powerful shield with which to protect American citizenship from the decision’s grotesque consequences.

Hans von Spakovsky and Amy Swearer are senior legal fellows in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom. Their new detailed legal report on “Federal Policy Responses to the Supreme Court’s Birthright Citizenship Decision” is here.