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Former President Donald Trump misleadingly said that “under Biden’s current policies” children born to parents in the country illegally automatically become citizens. That’s not a Biden policy, but rather it has been the standing interpretation of the 14th Amendment going back more than 100 years, including under Trump.
In a video posted to Truth Social, Trump revived an old promise, saying that on Day 1 of a new term as president, he would issue an executive order to end birthright citizenship for children born to parents in the country illegally. But as we wrote when Trump vowed to — but never did — issue such an executive order when he was president, most legal scholars believe such a change would require a constitutional amendment.
Trump said his order would also end the practice of so-called birth tourism, “where hundreds of thousands of people from all over the planet squat in hotels for their last few weeks of pregnancy to illegitimately and illegally obtain U.S. citizenship for the child.” Some experts say this happens far less frequently than Trump claimed.
Ending birthright citizenship has been on Trump’s radar for years. When he was running for president back in 2015, Trump told then Fox News host Bill O’Reilly the issue has been “fully vetted now” and all that would be needed to end birthright citizenship was “an act of Congress.” But as we wrote at the time, most constitutional and immigration scholars said such a change would require a constitutional amendment, which is a higher bar than simple legislation. But, we noted, there were a few who agreed with Trump.
Fast forward three years to 2018 and Trump, then serving as president, said in an interview with Axios that he was told by White House counsel that actually, birthright citizenship wouldn’t even need to be changed with legislation, that he could do it simply with an executive order. We wrote then that most constitutional scholars said he couldn’t do it via executive order, or if he did, it would likely be overturned by the courts.
Nonetheless, Trump said such an order was “in the process” and “it’ll happen.” But it didn’t.
A year later, in August 2019, Trump again told reporters he was “looking … very, very seriously” at issuing an executive order to end birthright citizenship. But again, he never actually did it.
In late November 2020, after Trump had lost the election, members of his administration said the president was considering finally issuing an executive action in the weeks before leaving office that would seek to end birthright citizenship. It didn’t happen.
In other words, when he had the opportunity as president, Trump spoke multiple times about issuing an executive order to end birthright citizenship, but he never pulled the trigger. Now, in a video posted to Truth Social, Trump said if reelected, he would make such an order a priority on his first day back in the Oval Office.
Trump, May 30: Under Biden’s current policies, even though these millions of illegal border crossers have entered the country unlawfully, all of their future children will become automatic U.S. citizens. Can you imagine? They’ll be eligible for welfare, taxpayer-funded health care, the right to vote, chain migration and countless other government benefits, many of which will also profit the illegal alien parents. This policy is a reward for breaking the laws of the United States and it is obviously a magnet helping draw the flood of illegals across our borders. … As has been laid out by many scholars, this current policy is based on an historical myth and a willful misinterpretation of the law by the open borders advocates. …
As part of my plan to secure the border on Day 1 of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward the future children of illegal aliens will not receive automatic U.S. citizenship.
Trump packed a lot into his statement, so let’s take it in pieces.
Trump said that “under Biden’s current policies” children born to parents in the country illegally automatically become citizens. That’s not a Biden policy, but rather it has been the standing policy going back more than 100 years.
According to the 14th Amendment, ratified in 1868, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
The idea was to grant citizenship to recently freed slaves. But the 14th Amendment also forms the basis of the country’s longstanding policy of granting birthright citizenship to anyone born on American soil.
Trump went on to say that “millions and millions and millions” of people come into the U.S. illegally, adding, “They come from mental institutions, they come from jails, prisoners.” This echoes comments Trump has made repeatedly on the campaign trail — that South American countries are emptying their prisons and “mental institutions” and sending those people to the U.S. But as we have written, immigration experts say there’s simply no evidence of that, and Trump has offered no backup.
Trump then said the U.S. “is among the only countries in the world” that extend citizenship to babies born in their country when neither parent is a citizen. But as we have written, a 2010 analysis by the Center for Immigration Studies, a think tank that advocates lower immigration, found that 30 of the world’s 194 countries grant automatic birthright citizenship to the children of immigrants in the country illegally. The U.S. and Canada are the only ones among those 30 countries that have advanced economies as defined by the International Monetary Fund. Outside North America, most of the 30 counties that have birthright citizenship policies are in Central and South America. No country in Europe has such a policy. Although Trump has said Mexico doesn’t have a policy like the U.S., it is actually pretty similar.
In his campaign video, Trump argued that the standing interpretation of the 14th Amendment bestowing citizenship to children born in the country even though their parents are in the U.S. illegally is — according to “many scholars” — “based on an historical myth and a willful misinterpretation of the law by the open borders advocates.” Trump said his executive order will make “clear to federal agencies that under the correct interpretation of the law, going forward the future children of illegal aliens will not receive automatic U.S. citizenship.”
Although Trump said “there aren’t that many of them around” who interpret the 14th Amendment to confer birthright citizenship to a child whose parents are in the country illegally, that’s not accurate. As we have written, that’s actually the opinion of most constitutional scholars.
The birthright citizenship portion of the amendment was upheld by the Supreme Court in 1898 in the case United States v. Wong Kim Ark, which involved a man, Wong Kim Ark, who was born in San Francisco to parents who were citizens of China but legally living in the United States. (There was no such thing as illegal immigration at the time.) Some argue that while that settles the issue of whether the 14th Amendment grants citizenship to children born to parents in the country legally, it doesn’t necessarily settle the issue regarding children born in the U.S. to parents in the country illegally.
Another Supreme Court involvement on the issue is a footnote in a 1982 decision in the case Plyler v. Doe, which dealt with the issue of whether states must provide education to children not “legally admitted” into the United States. In that case, Justice William Brennan, writing the majority opinion in the 5-4 decision, stated that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
In a 2015 op-ed in the New York Times, John Eastman, a founding director of the Center for Constitutional Jurisprudence, argued that the longstanding policy of extending citizenship to babies born in the U.S. to parents in the country illegally was based on a misunderstanding of the 14th Amendment and its limitation to people born in the U.S. who are “subject to the jurisdiction thereof.”
In 2018, Eastman told us that phrase precludes granting birthright citizenship to the children of immigrants in the country illegally, and he encouraged Trump to clarify that through an executive order. (Two years later, after the 2020 election, Trump hired Eastman, who was described in the final report from the House Select Committee to Investigate the January 6th Attack on the United States Capitol as one of the principal planners of an effort to overturn the certified presidential election results.)
But as we have said, most constitutional scholars don’t agree that a president can change the longstanding birthright citizenship policy via executive order. As we wrote in 2015, most constitutional experts think such a change would require a constitutional amendment. To achieve that, the change would have to be proposed by a two-thirds majority in both the House and Senate, and then it would need to be ratified by three-fourths of the states.
As we noted then, at least some constitutional scholars think a change could be achieved simply through federal legislation passed by Congress. Some legislators have tried unsuccessfully for years to pass a bill to end birthright citizenship for children of adults in the country illegally, and some of those bills implicitly assume the issue can be solved without a constitutional amendment.
Most recently, Republican Rep. Brian Babin introduced the Birthright Citizenship Act of 2021. The bill sought to redefine what it means to be “subject to the jurisdiction” of the United States so that birthright citizenship would only apply to a child born to a parent who is “(1) a citizen or national of the United States; (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien performing active service in the armed forces.” The bill, which had 31 Republican co-sponsors, never came up for a vote.
In 1995, the Justice Department’s Office of Legal Counsel issued an opinion that suggests Trump would be on dubious legal ground, as would even an attempt to change the policy through legislation.
According to then-Assistant Attorney General Walter Dellinger, “A bill that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face.”
“The phrase ‘subject to the jurisdiction thereof’ was meant to reflect the existing common law exception for discrete sets of persons who were deemed subject to a foreign sovereign and immune from U.S. laws, principally children born in the United States of foreign diplomats, with the single additional exception of children of members of Indian tribes,” Dellinger wrote. “Apart from these extremely limited exceptions, there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States.”
Ultimately, though, if Trump were to issue an executive order as president, it would likely be up to the Supreme Court to decide whether it passes constitutional muster.
Birth Tourism
In his campaign announcement, Trump also pledged that he would end the practice of so-called birth tourism via executive order.
Trump had similarly pledged to do this as president, but never did. Rather, his administration issued a rule in 2020 for the State Department, directing staff to deny nonimmigrant visas to women if there is a “reason to believe” they intend to travel to the U.S. for the primary purpose of obtaining citizenship for a child by giving birth in the U.S.
In his campaign announcement, Trump claimed “hundreds of thousands of people” have participated in birth tourism.
“My order will also end their unfair practice known as birth tourism, where hundreds of thousands of people from all over the planet squat in hotels for the last few weeks of pregnancy to illegitimately and illegally obtain U.S. citizenship for the child, often to later exploit chain migration to jump the line and get green cards for themselves and their family members,” Trump said in his campaign video. “It’s a practice that’s so horrible and so egregious, but we let it go forward. At least one parent will have to be a citizen or a legal resident in order to qualify.”
Trump’s campaign website provided a yearly figure, saying that “tens of thousands of foreign nationals fraudulently enter the U.S. each year during the final weeks of their pregnancies for the sole purpose of obtaining U.S. citizenship for their child.”
The Trump campaign did not respond to our inquiry seeking support for these figures, but it seems likely they come from the Center for Immigration Studies, which estimates there are 20,000 to 26,000 possible birth tourists a year.
If Trump were looking at a period of, say, 10 years, then his estimate of “hundreds of thousands” of birth tourists could be accurate, Steven Camarota, director of research for the Center for Immigration Studies, told us in a phone interview. But Camarota acknowledged the CIS estimate was based on data that was not limited only to women coming to the U.S. “for the last few weeks of pregnancy,” as Trump said.
Jeremy Neufeld, a senior immigration fellow at the Institute for Progress, took issue with the methodology underpinning Camarota’s estimates in a March 2020 blog post.
The U.S. Citizenship and Immigration Services does not provide a definitive count on birth tourism. Short of that, Neufeld told us the best estimate of birth tourism numbers comes from data provided by the Centers for Disease Control and Prevention. The CDC reports that there were 5,636 children born to foreign nonresidents in 2021. That annual figure was likely lower due to the pandemic; the CDC data indicate there were 10,042 children born to foreign nonresidents in 2019.
Camarota believes those figures significantly underestimate birth tourism because, he said, most mothers will list an address in the U.S. — rather than their foreign address — and remain in the U.S. until they are able to obtain a Social Security card, birth certificate and passport for their child. And so, he said, they are not captured in the CDC data.
Neufeld believes the CDC numbers are still the best estimate for the magnitude of birth tourism.
“The CDC numbers aren’t perfect — no numbers are — but I’ve never seen any evidence they’re more likely to be too low than too high,” Neufeld said. “Yes, they may miss birth tourists who lie about their residence, but they also include people who never intended to give birth in the US or are in the process of getting residency. Which of these effects is bigger? Nobody really knows.”
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