“We’re in a new world now,” Solicitor General John Sauer told the US Supreme Court at the time oral argument This April in the case of birthright-citizenship Trump vs. Barbara“where 8 billion people travel on the same plane so they don’t have a child who is an American citizen.” Chief Justice John Roberts quickly shot him down, replying, “Well, it’s a new world,” but it’s “the same Constitution.”
Roberts’ cunning showed his comments on behalf of the Court holding that the immediate citizenship of the birthright is guaranteed by the clause of the Fourteenth Amendment of the clause of citizenship. His opinion is a comprehensive presentation of American history up to the ratification of the Fourteenth Amendment in 1868, given the overwhelming evidence that the citizenship clause was intended to apply to almost everyone born in the United States. The decision was a major setback for one of President Trump’s signature policy initiatives. However, in Roberts’ opinion, however, there was any debate about whether birthright citizenship is a good idea in 21st century America.
And that’s a pity, because birthright citizenship brings many practical benefits to the United States today-arguments that the nation needs to hear, due to the campaign being made against it. In contrast, the three dissenting justices did not hold back, devoting many pages to the claim that birthright citizenship is destructive and even dangerous in our modern, mobile world—claims that are almost entirely unsupported and yet unchallenged. Defenders of birthright citizenship have made strong legal arguments in its favor; they need to start making a case for it too.
It’s an easy case to make. Children of immigrants make up about 10 percent of the total American population. They manage the US economy and serve in large numbers in government and military. About half of Luck 500 companies were established and immigrants and their children, more than 10 percent of current members of Congress are the children of immigrants, and six of the 45 US presidents, including Trump, had at least one immigrant parent. They are so well integrated into the fabric of the nation that most of us do not know which of our neighbors and colleagues were born to immigrant parents unless they decide to tell us.
Not all of these examples of successful children of immigrants would be excluded from citizenship under Trump’s executive order, of course, but some certainly would be. (And in any case, it’s impossible to know who is eligible for citizenship under Trump’s executive order without first investigating their ancestry—which is another reason to deny it.) More importantly, though, the children of immigrants have proven to be one of America’s greatest assets.
If Trump’s executive order were to go into effect, it would deny citizenship to approx 255,000 babies per year going forward—results that would not only be a nightmare for them and their families but also bad news for the national economy. Economists have noticed that citizenship status brings higher income. Even green card holders who have the right to work and live in the United States indefinitely to be paid more after obtaining citizenship. If all these children remained in the United States without citizenship, they would contribute less to our already strained tax base and Social Security system. Worse, if they were expelled (or if they were expelled themselves), their absence would accelerate the population decline that is turning us into an aging society with too few workers to support retiring Children.
In addition to these economic challenges, denying birthright citizenship undermines America’s founding principle that governments obtain “their rightful authority from the consent of the governed.” The United States cannot claim to be a democracy and at the same time deny the right to vote and hold office to a large percentage of its residents and their descendants forever, without including them on the basis of their “blood” and without considering the fact that they are. here. This is an important fact that the framers of the citizenship clause recognized back in 1868, which is why they established birthright citizenship to protect not only newly freed slaves but also the children of immigrants arriving from around the world. It remains as true today.
In dissent, Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito together spent thousands of words describing what Alito called the “horrendous consequences” of granting citizenship to the children of undocumented immigrants and natural born tourists.
Let’s start with “birth tourism” – the claim that foreign women come to the US on tourist visas to give birth to US citizen children and then leave, which has been at the heart of much conservative anger about birth citizenship. In the oral arguments, Sauer said that the tourists born from China and Russia number in the millions. But when the chief justice asked him directly if he knew “how common or how big a problem that is,” the chief counsel had to admit, “Nobody knows for sure.”
In fact, the US government makes no effort to monitor birth tourism, which alone shows that it is not a major crisis. The Center for Immigration Studies, an anti-immigration advocacy group, speculates 26,000 child-birth tourists per year—less than 1 percent of the 3.6 million babies born in the United States each year.
If birth tourism seems disturbing despite its small numbers, I have good news: It’s already illegal. Under a federal rule since 2020, the United States can deny a tourist visa to a woman whose main purpose of coming to the United States is to give birth. The ban can be enforced by Customs and Border Protection officers at US airports and at national borders. Following his Supreme Court loss, the Trump administration he announced plans to start prosecuting those who violate the law; why it did not do so earlier is unknown. (I filed a Freedom of Information Act request with the government over a year ago asking for records on the implementation of this policy but have yet to hear back.) In short, there is no need to take a hammer to birthright citizenship when we can use a scalpel to target birthright tourism.
What about Sauer’s claim that we live in a “new world” in which “8 billion people” (the total population of the world) are flying from birth on American soil? That’s a laugh.
Well, airplanes didn’t exist in 1868 (although ships did, and millions of immigrants traveled to the United States in the 19th century). However, it is true that today, international travel requires a passport and often a visa—none of which were required in 1868. At that time, there were few immigration restrictions and no federal immigration officials. Today, the nation spends billions screening entrants with sophisticated biometric tools, and thousands of Customs and Border Protection officers are stationed at every international airport and port of entry in the country. Most of the 8 billion people in the world can’t even board flights to the United States or neighboring countries because they do not have the necessary documents, even if they think they can afford the price of a plane ticket.
The issue of birth citizenship for the children of undocumented immigrants also concerned the dissenters. Even Judge Brett Kavanaugh, who accepted the result, described illegal immigration as a “new situation” that “the Founders of the Fourteenth Amendment could not fully foresee,” then concluded that “it is possible” they would not want to provide “the benefit of birthright citizenship” to the children of those lawbreakers. Justice Alito said that birthright citizenship provides “a powerful incentive to enter or remain in this country illegally.” These judges are right that the United States, like other developed nations, is struggling with the recent problem of large-scale illegal immigration. Where they go wrong is assuming that citizenship by birth has anything to do with them.
By design, US law does very difficultit is often impossible for undocumented parents in the United States to obtain legal status based on the child’s citizenship. And lessons have shown that primary motivation because irregular immigration is employment for parents, not birth citizenship for their children. That is why the rate of such immigration decreases sharply during the recession of the American economy. Moreover, European countries are stateless by birth, but are also struggling with waves of migrants fleeing violence and poverty for a better life.
If the government really wanted to stop undocumented immigrants, it would crack down on the thousands of American citizens and corporations that violate immigration law by employing them (even Alito admits that the children of undocumented immigrants are “not responsible” for their parents’ lawlessness). However, no administration, Republican or Democrat, has made a serious effort to enforce immigration law against the United States employers of undocumented immigrants. On the few occasions that Trump has tried to enforce it more narrowly — for example, by targeting Wisconsin dairy farms, whose workforce is roughly 70 percent undocumented — he’s faced significant backlash. inspiration from his own followers. Instead of firing those workers and punishing their employers, Trump is allowing this – he’s expected announce a special guest-job program for these dairy farmers (many of whom are Trump supporters) in the coming weeks.
All of this should make us wonder about Trump’s real reasons for spending extraordinary time and effort to end birthright citizenship. It probably has nothing to do with illegal immigration and birth tourism. Perhaps it is instead an attempt to redefine the meaning of United States to exclude the descendants of the newcomers, most of whom are not white. If so, Trump lost—but unless supporters of birthright citizenship defend it on policy and legal grounds, his view of who should be an American may ultimately prevail.
