A Narrow Lane on Birth Tourism

The Trump administration may have room to restrict entry, but not to deny citizenship after birth.

Photo by Christian Bowen on Unsplash

President Trump’s new executive order on birth tourism is not the same order the Supreme Court just rejected.

The earlier order tried to deny birthright citizenship to certain children born in the United States if their parents were unlawfully or temporarily present. The Supreme Court said no. A five-justice majority held that children born on American soil and subject to American law are citizens at birth under the Fourteenth Amendment, even if their parents are here illegally or temporarily.

That ruling leaves the administration with little room to deny citizenship after a child is born here.

It may leave room to act before birth, at the visa and entry stage.

The new order appears drafted with that line in mind. It does not say a child born in the United States through “birth tourism” is not a citizen. Instead, it targets foreign nationals who seek to enter the United States on a temporary visa for the purpose of giving birth here. It also targets those who facilitate that entry.

That presents a different legal question.

Regulating Entry Is Not Redefining Citizenship

The White House order defines birth tourism as entering the United States on a nonimmigrant visa for the purpose of giving birth on American soil, or helping someone else do so.

It then directs the Secretary of State and the Secretary of Homeland Security to act. That could include denying visas, refusing entry, revoking travel authorization, removing aliens who engaged or plan to engage in birth tourism, or pursuing those who operate birth tourism schemes.

That is immigration enforcement. It is not a denial of citizenship to a child already born here.

The administration’s strongest argument is that temporary visa categories exist for temporary purposes. A tourist visa, student visa, or other nonimmigrant visa is not supposed to be used as a vehicle to obtain a permanent immigration benefit. If someone’s real reason for entering the country is to give birth so the child receives U.S. citizenship, the administration will argue that this misuses the visa system.

That argument has more legal room than the earlier executive order.

The President has authority over entry and visa enforcement. The executive branch can deny entry to people who do not qualify for admission. It can also act against fraud, misrepresentation, and misuse of temporary visa categories.

But that authority stops short of rewriting the Citizenship Clause.

Citizenship Is the Boundary

Once a child is born in the United States and is subject to American jurisdiction, the Supreme Court’s ruling controls.

The Roberts majority did not leave room for the government to say, “This child was born here, but the mother came for the wrong reason, so the child is not a citizen.” The Court rejected the idea that birthright citizenship turns on whether the parents were lawfully present, temporarily present, or unlawfully present.

So birth tourism may be a lawful target for immigration enforcement before entry. It is not a lawful basis for denying citizenship after birth.

The government can try to stop someone from entering on a temporary visa for the purpose of giving birth here. It can scrutinize applications. It can deny visas. It can remove people who obtained entry through fraud or misrepresentation.

But if the person enters the United States and gives birth here, the child’s citizenship does not depend on the mother’s motive.

That may frustrate opponents of birth tourism, but it is the line the Court just drew.

The Bottom Line

There is a legitimate debate over birth tourism. The public can reasonably object to foreign nationals using temporary admission to the United States for the purpose of securing citizenship for a child. Congress may choose to address the issue by statute. The executive branch may have authority to police fraud, visa misuse, and entry rules.

Birthright citizenship is different.

The Supreme Court has now said that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth. That holding limits what any president can do by executive order.

Trump’s new order may survive if it is treated as an immigration-enforcement order aimed at preventing birth tourism before entry.

It will run into serious constitutional trouble if it becomes a backdoor attempt to deny citizenship after birth.