On Wednesday, the Ninth Circuit Court of Appeals ruled that President Trump’s executive order banning birthright citizenship for children of illegal immigrants was “unconstitutional.” In his executive order, Trump argued that the phrase “subject to the jurisdiction thereof,” in the 14th Amendment has been wrongly interpreted. He contends that this birthright citizenship does not automatically apply to those whose parents do not have legal citizenship or permanent residence in the U.S. at the time of their birth.
Birthright citizenship, although seemingly simple, has been creating issues in the U.S. for decades, as “birth tourism” — a term used for noncitizens who travel to America and give birth to gain U.S. citizenship for their child — has been on the rise. Over 33,000 births in America are a result of birth tourism. This does not include “hundreds of thousands more [that] are born to mothers who are illegal aliens or present on temporary visas.”
Critics say these cases of “birth tourism” are deeply problematic because these tourists “receive taxpayer-funded public assistance” to pay for birthing costs, including hospital fees, which they are never required to repay for future tourist visas. The rise of birth tourism has become increasingly prevalent in U.S. territories like the Commonwealth of the Northern Marianas Islands, where Chinese citizens are not required to produce a visa.
However, the first Trump administration made attempts to manage this issue. In January of 2020, the U.S. Department of State announced an amendment to B non-immigrant visa regulations “to address birth tourism.” This new regulation amendment allowed “U.S. consular officers overseas [to] deny any B visa application from an applicant whom the consular officer has reason to believe is traveling for the primary purpose of giving birth in the United States to obtain U.S. citizenship for their child.”
But observers say these issues go beyond birth tourism. Pew Research Center found that “about 4.4 million U.S.-born children under 18 live with an unauthorized immigrant parent.” Birthright citizenship, as it is currently interpreted, incentivizes illegal immigrants to enter the U.S. and give birth. Even so, some Democrats have expressed outrage over “family separation” at the U.S. southern border, and they contend that these parents must stay in the U.S. because “families belong together.”
But when the Trump administration began deporting parents who chose to have their children removed with them, Democrats were still fuming. U.S. border czar Tom Homan explained the administration’s actions, saying, “We’re keeping families together. What we did was remove children with their mothers who requested the children depart with them. There’s a parental decision.”
However, the court rejected President Trump’s “novel” interpretation of the 14th Amendment. “When the Fourteenth Amendment was adopted, as it is today, ‘jurisdiction’ was commonly used in reference to the power of the courts, defined as ‘[t]he legal power or authority of hearing and determining causes.’”
The court concluded its findings by stating, “The district court correctly concluded that the Executive Order’s proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional.”
Ed Whelan, the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and a respected legal scholar, was skeptical the courts would side with Trump even before this latest ruling. “At a minimum, an administration that was genuinely serious about advancing the position set forth in Trump’s should be pursuing legislation that embodies that position. The seeming impossibility of enacting such legislation any time soon is no argument against working to build the political case for it,” he pointed out. “There is very little that will be enduring that can be achieved by executive orders.”
Caily Shriver serves as an intern at Family Research Council.
