In Trump v. Barbara, the Supreme Court invalidated Donald Trump’s executive order which sought to end automatic citizenship for children born in the United States to illegal immigrants and temporary foreign visitors.
The high court’s 6-3 feel-good affirmation of birthright citizenship misstates history, devalues citizenship, endangers national security, and incentivizes Democrats to again open our borders. The holding that even birth tourism is protected by the Citizenship Clause of the 14th Amendment is contrary to America’s constitutional, statutory, and administrative framework from 1776 through 1939, when Franklin Roosevelt’s administration asserted that the Citizenship Clause protects U.S. born children of temporary foreign visitors.
Based on Calvin’s Case, a 418-year-old British legal decision that the King’s subjects born on his lands owed him perpetual allegiance, and an expansive misreading of United States v. Wong Kim Ark, an 1898 Supreme Court case that affirmed birthright citizenship for children of legal immigrants, the Supreme Court has now ruled that certain exceptions discussed in Wong are forever the sole exceptions under the Citizenship Clause.
Joined by Neil Gorsuch, Clarence Thomas correctly observed in his dissent that the “English principle was a rule of feudal servitude, not a rule of citizenship.” It was, he wrote, a relation of “master and servant.” Samuel Alito added in his own dissent that “before saddling the Nation with a medieval rule, we had better be certain the Constitution requires it.” He concluded it does not.
Like Roe v. Wade, the majority opinion backfills a predetermined outcome. The analysis is legally flawed and troubling from policy and practical perspectives. The birth tourism prong is almost unintelligible, and was one vote from defeat. On Truth Social, Trump posted, “I would like to congratulate President Xi, and the Great Country of China, on their massive Birthright Citizenship WIN!”
In his book, “The Invisible Coup,” Peter Schweitzer concludes that during the last 14 years up to 1 million Chinese children were born as birthright American citizens, and more than 1,000 Chinese companies in the U.S. facilitate this practice. A lower estimate from the Center for Immigration Studies of 20,000 to 26,000 births each year based on unverified birth certificates is only marginally less troubling.
In his partial concurrence, Brett Kavanaugh opined that Trump’s executive order could have been invalidated based solely on the Immigration and Nationality Act of 1952. Instead, five justices (John Roberts, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson), broadened the inquiry from the validity of Trump’s order to “whether the Constitution guarantees citizenship to children born of parents unlawfully or temporarily present in the United States.”
The majority opinion relies on a shoddy, parsed history and brittle inferences. With little contemporaneous support, the majority found that the United States embraced Calvin’s Case’s principle of servitude as the foundation for citizenship. To the contrary, the United States rejected feudalism and replaced it with the contrary philosophy in the Declaration of Independence that governments derive “their just powers from the consent of the governed.” The Declaration further proclaimed:
We, therefore, the Representatives of the united States of America … appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown …
The Declaration did not say “except that we like the part about the monarch treating us as serfs by allowing us onto his land.” Even as the 14th Amendment was being ratified, Congress enacted the Expatriation Act which again rejected feudal servitude as an element of citizenship.
The court majority dismissed the centrality of domicile to U.S. citizenship and insisted that Wong held that the only permissible exceptions to birthright citizenship are children born on foreign ships, and the children of diplomats, occupying forces, and Indians (until repealed by Congress).
That is misleading. Wong concerned legal immigrants domiciled in the United States. In deciding that case, the court repeatedly emphasized that its discussion was limited to those living here, and expressly held that to obtain citizenship a child’s parents must be “resident aliens” who are “domiciled in the United States.”
As Justice Thomas observed, both before and after Wong, courts, government officials and scholars largely agreed that the Citizenship Clause did not extend to U.S. born children of foreign temporary visitors.
From 1776 through 1939, no branch of government asserted that children born in the U.S. to foreign visitors were American citizens. With rare exceptions, the executive branch and courts denied citizenship to children of temporary visitors born in the U.S. on the premise that citizenship followed the parents’ domicile. Just five years after the 14th Amendment, the Supreme Court observed in the Slaughter-House Cases that the Citizenship Clause excludes U.S.-born children of foreign citizens.
When Congress enacted the Nationality Act of 1940 and Immigration and Nationality Act 12 years later, it understood that it was conferring citizenship on the children of illegal aliens, but it never considered temporary visitors. Justice Kavanaugh resolved this problem by concluding that because Congress incorporated the same phrase (“subject to the jurisdiction”) in both statutes that was used in the Citizenship Clause litigated in Wong that it intended to accept the Wong exceptions (sensible), but not its condition that parents be domiciled in the U.S. (perverse). He observed that from 1940 and until Trump’s executive order in 2025, the executive branch had adopted a similar interpretation.
Trump announced on Wednesday that he is seeking a rehearing, a request the court almost never grants. Notwithstanding its infirmities, Barbara is now the law of the land. Working within its constraints, Congress and the president still may seek to curtail birth tourism. Existing law permits prosecution for visa, wire and health care fraud, money laundering, and identity theft, punishable by multi-year prison sentences and heavy fines. Within hours after the court ruled, the Justice Department prioritized the prosecution of fraudulent birth tourism schemes.
Congress must enact bipartisan legislation that outlaws engaging in or facilitating birth tourism, and gives the president the right to bar and deport pregnant women who are not domiciled in the United States and who are suspected of birth tourism or come from countries with an elevated risk of birth tourism. Legislation recently introduced by Sen. John Cornyn is a good starting point. It would be particularly effective if mothers who give birth in violation of these laws are imprisoned, though that is politically fraught.
There are several U.S. territories not subject to the 14th Amendment in which Congress granted citizenship to residents. Congress should amend these grants to expressly exclude the children of illegal and temporary foreigners born in these territories.
Democrats who stand in the way of legislation controlling birth tourism must pay a political price.
For those who cherish citizenship as something more than a check-the-box transaction for rich foreigners, there is a path forward to curtail birth tourism. We must take it.
