Could the Supreme Court Deliver a Surprise on Birthright Citizenship?

Ahead of the Supreme Court arguments over President Trump’s reform of America’s birthright citizenship policy, the commander in chief is framing the case around concerns over so-called birth tourism. “Birthright Citizenship is not about rich people from China, and the rest of the World,” he laments today on Truth Social, “who want their children, and hundreds of thousands more, FOR PAY,” to “become citizens of the United States of America.”Republican members of Congress are among those raising similar concerns about birth tourism ahead of the high court’s hearing on Wednesday in the dispute. Countries like Communist China, the lawmakers say, are taking advantage of America’s policy of granting citizenship to children born here, even if the parents are visiting foreign nationals. Mr. Trump is seeking to end this practice via an executive order he signed on the first day of his second term. Representatives Tom Tiffany and Chip Roy, along with more than 30 other Republicans in the House, caution that as many as 1.5 million Chinese nationals obtained American citizenship partly by “exploiting birthright citizenship and immigration parole programs created by the Obama and Biden administrations.” That concern is echoed by Mr. Trump when he warns that “The World is getting rich selling citizenships to our Country” due to birth tourism.Countries like China, the president avers, are reaping benefits of American citizenship for their residents because of a misreading of the 14th Amendment. That constitutional provision has long been interpreted to almost always grant citizenship to those born here. That reflects a Supreme Court ruling from 1898, United States v. Wong Kim Ark. The Nine affirmed the citizenship of a child born here to long-term residents who were Chinese subjects.Mr. Trump has argued that advocates of birthright citizenship are “saying the 14th Amendment was NOT written to take care of the ‘babies of slaves.’” The president has a point here in that, as he notes, the amendment’s ratification “perfectly coincided with the END OF THE CIVIL WAR.” He asked: “How much better can you do than that?” Yet the amendment’s Citizenship Clause has not been found by courts to be confined to the children of slaves.Hence the rationale, as Mr. Trump’s solicitor general, John Sauer, puts it, for the executive order that “restores the original meaning of the Citizenship Clause.” What these columns called the “realities of immigration in the 21st century,” including abuses like birth tourism, help to bolster the case for a reexamination of the custom of birthright citizenship. So while Mr. Trump has claimed to be resigned to losing the case, it’s far from clear that a defeat is likely.Another possible outcome in Trump v. Barbara is a kind of split decision. Under such a ruling, the larger principle of birthright citizenship could be affirmed for, say, children of long-time residents of America, regardless of the parents’ citizenship status, as in the Wong case. Yet the excesses of birth tourism, in which parents travel to an American territory specifically to gain citizenship for their children, could end up being reined in. Reasoning for such a decision can be found in a friend of the court filing by a University of Minnesota law professor, Ilan Wurman. He argues that “mere birth on the sovereign’s soil has never been the rule for birthright subjectship or citizenship.” The key factor, he asserts, is “birth in the realm to parents under the sovereign’s protection,” as opposed to “temporary visitors.” The distinction will be one to listen for during oral arguments.

Could the Supreme Court Deliver a Surprise on Birthright Citizenship?

Could the Supreme Court Deliver a Surprise on Birthright Citizenship?

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