Birthright Citizenship Attack Renews
Trump again directs federal officials to limit the 14th Amendment
President Donald Trump has gone after birthright citizenship again. In a pair of executive orders signed yesterday, Trump renewed his attention on one of the few immigration issues that hasn’t gone his way at the Supreme Court. The orders attempt to limit who can enter the United States and when their children born here are treated as U.S. citizens.
In one order, Trump instructed the State Department and Department of Homeland Security to bar people from entering the United States if they are participating in “birth tourism.” The president’s directive defines birth tourism as entering the United States on a temporary visa – called nonimmigrant status in immigration law – “for the purpose of giving birth” in the country or facilitating someone else’s entry on a nonimmigrant visa to give birth here.
Despite being a favorite topic of Republican attacks on citizenship, there is no data supporting the claim that birth tourism is widespread. It is unclear how government officials would decide when someone traveled solely for the purpose of giving birth in the United States. The order instructs the State Department and DHS to issue more guidance. They have not yet done so.
The second order that Trump signed yesterday builds off the Supreme Court’s decision in late June rejecting the president’s prior attempt to limit birthright citizenship. In that decision, Trump v. Barbara, the court reiterated its 125-year tradition of protecting broad access to U.S. citizenship. The Fourteenth Amendment, added to the U.S. Constitution in 1868, treats almost everyone born in the United States as a citizen from birth. According to the majority opinion in Barbara, the constitutional provision does not grant citizenship to “the children of foreign ministers and members of 19th-century Indian tribes.” The justices also noted that the amendment adopted the British legal practice of not granting citizenship to children born “in discrete areas within his kingdom that were temporarily outside his control,” referring to the British king.
Yesterday’s order does much more than repeat the exclusions that the Supreme Court has long recognized. In addition to excluding from citizenship children born to people who engage in birthright tourism, Trump would also like to deny citizenship to children born in the United States to two parents who are not U.S. citizen as long as one parent:
· Pays a surrogate based in the United States;
· Is an employee of the United Nations, Organization of American States, or other international organization that, by law, receives immunity in the United States;
· Works for a foreign embassy if the parent is themselves a citizen of that country;
· Officially represents a foreign government; or
· Is a member of a designated terrorist organization, which currently includes Antifa, Tren de Aragua, and dozens more groups.
For most of these categories, the court’s decision in Barbara makes Trump’s latest attempt to narrow access to birthright citizenship legally dubious. Yesterday’s order makes much of the fact that the Supreme Court explained that traditionally the United States had extended citizenship to “any child for whom no extraterritorial fiction applied.”
But the court’s opinion in Barbara, which is legally grounded in the Constitution’s Fourteenth Amendment, rather than the common law that existed before its enactment, recognizes a broader form of citizenship access. In most instances, the citizenship or immigration status of a child’s parents is irrelevant, the court explained. The Fourteenth Amendment doesn’t reference a child’s parents “For a simple reason: they did not matter,” Chief Justice John Roberts, who wrote the majority opinion in Barbara, announced. This would seem to include children born to surrogates, though the court had no reason to mention surrogacy in its decision. Likewise, children born to “parents unlawfully or temporarily present in the United States…are citizens at birth,” the court explained. The court did not hint at an exclusion for children born to people who hold politically disfavored views or engage in crime. Though the court did repeat the exclusion for children born to territory that is not in the control of the U.S. government, none of the organizations currently designated as a foreign terrorist group do. At best, the administration may find some leeway to bar children born to a larger group of foreign-government employees than is currently the practice in the United States.
On a practical level, it’s hard to imagine how the Trump administration will apply the president’s directive to children born to terrorist groups. Instead, the most likely legal challenges to Trump’s directives are likely to come from children whose parents are based in the United States while they work for the U.N. or a similar international organization or children born to surrogates. Given Barbara, the response from courts should be straightforward: what the parents do for a living does not matter because, as Roberts wrote just this summer, the parents don’t matter.