Citizenship for Sale: How Adversaries Exploit America’s Birthright Loophole

The Supreme Court case on birthright citizenship cuts to the heart of one of the most consequential questions in American immigration law: whether the 14th Amendment compels the United States to grant automatic citizenship to virtually every child born within its borders, including the offspring of foreign nationals who traveled here specifically to deliver on American soil. The answer could reshape what it means to be an American or expose what critics say has long functioned as an unintentional citizenship-for-sale program exploited by adversaries, including the Chinese Communist Party.History was made when the court heard arguments on April 1 over the constitutionality of President Trump’s effort to end birthright citizenship. Mr. Trump was in the courtroom for Trump v. Barbara, the first time a sitting president has attended such a session. He stayed through the entirety of Solicitor General D. John Sauer’s 65-minute presentation before departing roughly seven minutes into opposing counsel’s rebuttal. After leaving, he wrote on Truth Social, “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”That claim that does not hold up, as roughly three dozen countries offer unrestricted birthright citizenship, including Canada, Mexico, and nearly every nation in Central and South America.However, the question the court must now answer is whether a constitutional guarantee written to extend the promise of belonging to formerly enslaved people has, a century and a half later, become a mechanism that hostile foreign powers have learned to exploit, and whether anything can be done about it.A majority of the justices appeared skeptical of the administration’s position and ready to uphold automatic citizenship for babies born in the United States. A decision is not expected before late June or early July.Signed on Mr. Trump’s first day back in office, the executive order being challenged denies citizenship to children born to parents who lack permanent legal status in America, and every federal court to consider it has struck it down, with the first judge to weigh in calling it “blatantly unconstitutional.” Representing the administration before the court, Mr. Sauer contended that “birth tourism” is “creating a whole generation of American citizens abroad with no meaningful ties to the United States.”The precise scale of the industry, however, is contested. When Chief Justice John Roberts pressed Mr. Sauer on how common birth tourism actually is, the solicitor general conceded that “no one knows for sure” — prompting Roberts to observe that whatever problems it may pose, the phenomenon “certainly wasn’t a problem when the 14th Amendment was ratified” and that while we may have a “new world,” we have “the same Constitution.”The industry behind the issueLong before the legal battle reached the high court, a lucrative industry, however large, had quietly taken root. Hundreds of companies have advertised to pregnant women, particularly those from China, Nigeria, Russia, and Turkey, offering services to secure visas allowing them to visit the United States during the weeks they expect to give birth. The pitch is straightforward: spend the money, board a flight, deliver the child, and return home with an American passport in the crib.Federal authorities say willfully misrepresenting the purpose of travel can constitute visa fraud. The Justice Department has moved against some of these operations, unsealing indictments naming 19 people linked to Chinese birth tourism schemes in which foreign nationals applied for visitor visas and lied about their trips. One operator, Dongyuan Li of Irvine, California, had a $2.1 million residence and six vehicles, including four Mercedes-Benz cars, seized in forfeiture proceedings. When federal agents interviewed her husband during a search of the property, he reportedly told them the birth tourism investment was “chump change” because he had more than $10 million in bank accounts in China.The Center for Immigration Studies estimates that temporary visitors gave birth to roughly 70,000 babies in 2023, representing fewer than than 2 percent of all births in America that year. Critics contend that even a small percentage, compounded over decades and attached to the full weight of American citizenship, represents a structural vulnerability no peer nation would permit.A professor of law at Northwestern University, Paul Gowder, pushes back on that framing. “The number of people who come to the United States for the purposes of ‘birth tourism’ is really small, a percentage of a percentage,” Mr. Gowder tells The New York Sun. He points out that consular officials already have broad discretionary authority to deny visas to travelers they believe intend to give birth, and that current regulations explicitly permit such denials. “We don’t have a loyalty test for citizenship and we never had,” he underscores. “Worries about someone’s loyalty or good behavior have never been grounds to deny citizenship under the 14th Amendment.”The China problemIt is the national security dimension, particularly involving Beijing, that has generated the greatest alarm on Capitol Hill. House Republicans, led by Representatives Chip Roy of Texas and Tom Tiffany of Wisconsin, pressed the Trump administration in a letter co-signed by more than 30 members over whether China is exploiting birthright citizenship and visa-waiver policies in the Commonwealth of the Northern Mariana Islands, a United States territory in the Pacific, to secure long-term influence inside the country. The Northern Marianas operates under distinct immigration rules that, lawmakers argue, have made it a particularly attractive portal.The lawmakers cite reports estimating that between 750,000 and 1.5 million Chinese nationals have obtained United States citizenship through birthright policies and birth tourism, though federal agencies have not publicly confirmed those figures. They have asked the departments of Homeland Security, State, and Interior to account for how many of those children have reached voting age, how many are registered to vote, and whether any have documented ties to the Chinese Communist Party.According to the FBI, Chinese government espionage is the bureau’s top counterintelligence priority, and the House Committee on Homeland Security has documented more than 55 CCP-related espionage cases across 20 states between 2021 and 2024, including the recruitment of naturalized citizens with access to sensitive military and technology information. Analysts argue it would hardly be surprising for Beijing to seek to exploit birthright citizenship toward the same goals.The president of the Government Accountability Institute, Peter Schweizer, testified before the Senate Judiciary Committee in March that birth tourism has become an “industrial” scale operation, with more than 1,000 companies in China almost exclusively focused on the United States, describing a concierge-style industry that charges roughly $100,000 to transport a foreign national to the United States, arrange medical care, secure citizenship for the child, and return the family home.“These are not political dissidents,” he told the committee. “These are military officers, people from the Ministry of propaganda, people that are high-ranking officials in the Chinese Communist Party.”Doing the math on what he said were Chinese government estimates of around 50,000 such births annually, Mr. Schweizer warned that “you are potentially looking at anywhere from between 750,000 to 1.5 million United States citizens that are being raised in China.”Senator Marsha Blackburn of Tennessee introduced legislation in May 2025 aimed squarely at this problem. The Ban Birth Tourism Act would prevent foreign nationals from adversarial nations, including China and Russia, from purchasing American citizenship for their children by removing childbirth and pregnancy as permissible bases for tourist visa applications. The concern is not abstract: Once those children turn 21, they can legally sponsor their parents, including current or former Chinese Communist Party officials, for lawful permanent residency, while also holding the right to vote in American elections, donate to political campaigns, and apply for government positions requiring security clearances. The bill has not yet become law.The constitutional fault lineThe legal fight turns on five words written into the Constitution in 1868: “subject to the jurisdiction thereof.” The Trump administration argues that the Citizenship Clause was intended to overrule Dred Scott v. Sandford and secure citizenship for freed slaves and their children, not to guarantee automatic citizenship to children of temporary visitors or those in the country without authorization.The challengers point to United States v. Wong Kim Ark, decided in 1898, in which the Supreme Court affirmed citizenship by birth with limited exceptions for children of foreign diplomats, occupying enemies, and members of Native American tribes. Justice Elena Kagan pressed Mr. Sauer on this directly during arguments. “I think even your brief concedes that the position you’re taking now is a revisionist one with respect to a substantial part of our history,” she said. “That’s, in part, because of Wong Kim Ark and the way people have read that case ever since then.”Professor Gowder is unequivocal. “Wong Kim Ark settles the question,” he insists. “There has never been a serious debate about this. Even conservative originalists like Michael Ramsey have come out publicly and said that the best understanding of the text and original intent of the clause supports citizenship for everyone born in the 50 United States states, except for the tiny handful of traditional exceptions.”A professor of Law at the University of Minnesota, Ilan Wurman, offers a more cautious read. There is evidence on both sides, he tells the Sun, noting that Wong Kim Ark’s parents were lawfully domiciled in the United States — and that that fact was part of the question presented to the court. “So, it’s not accurate to say the Wong Kim Ark decision has settled this question,” Mr. Wurman says.On whether Congress should pursue targeted legislation to address adversarial exploitation independent of the constitutional debate, Mr. Wurman is matter-of-fact. Whatever practical consequences might flow from a ruling in the administration’s favor, he explains, “Congress has the naturalization power.” “Any practical consequences are legislative problems which Congress is perfectly capable of solving with its legislative powers,” Mr. Wurman says, meaning that even if the court rewrites the rules on who is a citizen at birth, lawmakers retain the authority to clean up whatever follows.Mr. Gowder agrees Congress could amend admissibility statutes to bar entry for the purpose of giving birth. However, if the court ultimately rules for the administration, he warns the fallout could reach far beyond anyone currently in the debate, creating “just a terrible kind of uncertainty about citizenship for potentially millions of people.”“Imagine finding out that your parents’ paperwork got screwed up, so you’re no longer a citizen of the country you were born and raised in,” he adds. “It’s madness.”

Citizenship for Sale: How Adversaries Exploit America’s Birthright Loophole

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