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Supreme Court, Birthright Citizenship, and Espionage
The Supreme Court will soon decide Trump v. Barbara, in which the president seeks by Executive Order to overturn the citizenship clause of the 14th Amendment. The Amendment says almost any child born on U.S. soil is automatically and forever an American citizen. The Court will most likely reflect long precedent to allow birthright citizenship as it exists today to stand unaltered. But its decision will have profound secondary effects, not the least of which is determining the future of birthright citizenship tourism and its possible effect on national security.
The question of whether most children born in the U.S. are citizens connects back to the deadly omissions of the Founding Fathers when they failed to address slavery in creating the country. The founding documents did not even recognize blacks as full humans, never mind considering granting those born here citizenship. In the lead up to the Civil War, when the right to vote became crucial as new states entered the Union slave or free, the 1857 Supreme Court decision in Dred Scott v. Sandford held that those descended from African slaves could not be citizens of the United States. Some legal scholars drew implications from Scott to mean all children born in the United States to foreign parents were not automatically U.S. citizens.
The 14th Amendment to the Constitution was adopted in 1868, in the aftermath of the Civil War, as part of reconciling the status of millions of then-freed slaves. The Amendment’s citizenship clause specifically overruled Scott v. Sandford, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Controversy erupted even as the Amendment was being drafted. Senator Edgar Cowan of Pennsylvania argued states should not be forced to grant citizenship to the children of “Asiatic” immigrants or “Gypsies” who, he said, did not share American values or owe true allegiance to the country. Senator Jacob Howard of Michigan stated the Amendment was written to exclude the children of “foreigners” and “aliens.” Senator Lyman Trumbull of Illinois went on to successfully clarify that “subject to the jurisdiction” meant completely under the legal authority of U.S. courts. Because immigrants were required to obey U.S. laws, could be tried in U.S. courts, and paid U.S. taxes, their children born on U.S. soil were included. The only noteworthy groups deliberately excluded were children of foreign diplomats, who were not subject to U.S. law via their diplomatic immunity, and initially Native Americans living on sovereign tribal lands. They answered to tribal governments not the U.S. government. The 14th Amendment’s concept of citizenship was fully tested in the 1898 case United States v. Wong Kim Ark. The Supreme Court’s majority opinion confirmed birth on U.S. soil grants automatic citizenship, even if the parents are both foreigners or barred from ever becoming naturalized citizens themselves. Most mainstream constitutional scholars believe the legislative history as a whole, combined with Wong, supports citizenship for the children of aliens.
Birthright citizenship does leave a problem for America to deal with: will a foreign power, say China, use the idea to groom an American citizen who also owes allegiance to China into a spy, perhaps taking advantage of his American citizenship and highly-desired Mandarin language skills, to infiltrate him from the earliest stages into the CIA, State Department, NSA or military? Even short of actual spying, secondary allegiances can complicate decision-making in sensitive positions.
The issue is loyalty, not leverage (i.e., relatives for the Ministry of Truth to pressure in the home country, investments abroad to help or harm), which can be screened for. Intelligence officers of all nationalities have long-known that after money, ideology is the most powerful tool to convince someone to betray his government. Desire for importance, status, or appreciation from the “home” country closely follows. Things like blackmail do exist, just like in the movies, but are crude instruments that lead the target to resent the foreign government, not want to help it. The presence of a vast birth tourism industry, sending an estimated 60,000 Chinese to the U.S. a year to give birth to American citizens, sets the stage and raises the level of concern. Most of those Chinese births are economically-oriented, but the large number leaves room for bad actors. This all involves a lot of speculation, and it is well-known that foreign spies target Americans of all flavors, native born, or naturalized. But any mechanism that increases long-term Chinese access to the United States deserves scrutiny from a national security perspective.
Most debates over birthright citizenship focus on legal interpretation or immigration policy. The espionage question is one of national security. It asks whether a foreign government could exploit the doctrine for long-term intelligence purposes. While publicly known cases are impossible to locate, the job of intelligence professionals is to evaluate threats based not only on demonstrated harm but also on opportunity and intent. Birth tourism creates a mechanism by which foreign governments could establish long-term human footholds inside the United States. Whether that possibility is significant enough to justify changing a constitutional understanding that has existed for more than a century remains a central question. One hopes the Supreme Court gives this its due consideration in adjudicating Trump v. Barbara.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Chinese Baby Factories Exploit Birthright Citizenship
Even before taking office, Trump’s influence is being felt on birthright citizenship. ICE, taking advantage of Biden’s absence as a leader, saw a California man sentenced to over 3 years in prison for running a business called USA Happy Baby that helped pregnant Chinese women travel to the United States to deliver babies who would automatically get American citizenship.
USA Happy Baby helped several hundred women travel from China to give birth to American citizen babies. The “tourists” paid as much as $40,000 for services including apartment rentals during their stays in Southern California and worked with overseas entities that coached women on what to say during visa interviews and upon arriving in U.S. airports, advising them among other things to wear loose clothing to hide their pregnancies.
“For tens of thousands of dollars each, defendant helped his numerous customers deceive U.S. authorities and buy U.S. citizenship for their children,” federal prosecutors wrote in court papers. USA Happy Baby worked with a multi-million dollar adjacent business called You Win USA which further coached pregnant Chinese women on how to get into the United States. Another business, Star Baby Care, boasted of bringing over 8,000 Chinese women to the U.S. to give birth. The businesses operate openly, and advertise freely in Chinese-language media both here and abroad. It is big business. Yet many of the women, lacking U.S. health insurance, gave birth as public charges using public funds.
Such businesses have long operated in California, Florida, and other states and have catered to people not only from China, but also from Russia, Nigeria, Korea, and elsewhere. It isn’t illegal to visit the United States while pregnant, but lying to consular and immigration officials about the reason for travel is when the primary purpose is to give birth in the U.S. is. Birth travel is driven by birthright citizenship, and Donald Trump wants to do away with both of them.
“I see this as a grave national security concern and vulnerability,” said Mark Zito, assistant special agent-in-charge of Immigration and Customs Enforcement. “Are some of them doing it for security because the United States is more stable? Absolutely. But will those governments take advantage of this? Yes, they will.”
So what is birthright citizenship? A child born in the United States (with limited exceptions) to a foreign citizen, legally or illegally present in the U.S., is by virtue of the 14th Amendment (the so-called Citizenship Clause) automatically and forever an American citizen. The child need only prove he was born in the U.S. At the age of 21 the child can begin filing green card paperwork for his extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.
The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford, which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong is understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.
Doing away with birthright citizenship is another of Trump’s proclaimed Day One initiatives. In a campaign post, Trump wrote “On Day One, President Trump will sign an Executive Order to stop federal agencies from granting automatic U.S. citizenship to the children of illegal aliens. It will explain the clear meaning of the 14th Amendment, that U.S. Citizenship extends only to those both born in and ‘subject to the jurisdiction’ of the United States.”
The Trump campaign also said it would order on Day One the Social Security Administration to refuse Social Security numbers to newborn children without proof of the parents’ immigration status. Trump will issue the same order to the State Department, which issues U.S. passports. This would not require any action from Congress and because it would not grant/take away citizenship per se, would not directly violate the 14th Amendment in Trump’s interpretation.
Currently, a U.S. birth certificate is all that is needed to obtain a Social Security number and passport in most cases. The State Department considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department’s Foreign Affairs Manual takes the position Wong settled this issue. This means the Trump E.O. would likely be challenged immediately in lower courts and the case would be ripe for the Supreme Court to use to revisit Wong if they wished to. The Court could rule classes of foreigners on U.S. soil such as tourists (included already are children of foreign diplomats) are not subject to the jurisdiction of the United States and therefore their children, if born in this country, are not entitled to citizenship. The Court could also side with long precedent and refuse to even hear the case.
Another option for Trump would be to re-issue and this time enforce an Executive Order from Trump 1.0. Under this E.O., visitors can be denied temporary tourist visas if it’s found the “primary purpose” of their travel is to obtain citizenship for a child by giving birth in the United States. The rule does not currently apply to the 39 countries in the Visa Waiver Program, including Korea, and State in implementing the E.O. forbids its visa officers from even asking in most cases if an applicant is pregnant, making the order near-impossible to enforce. A revised E.O., which refines “tourism” to exclude planning to give birth in the U.S., extends the exclusion to the Visa Waiver Program, applies equally to ICE at the Ports of Entry, and prohibits the State Department from defanging the law in its implementing guidance, could go a long way toward at least slowing the flood of pregnant visitors to the U.S.
Trump could also order ICE to more aggressively pursue the baby facilitators now actively at work in the U.S., places like USA Happy Baby and You Win USA. ICE could productively look into how the organizations move money internationally, likely to find something akin to money laundering and tax evasion, even if the immigration laws themselves are too weak to hold up in court on a large scale.
What Trump cannot do is wipe away the 14th Amendment, and it is possible his other efforts to slow birth tourism will ultimately fail on this point. Then-House Speaker Paul Ryan in 2018 said “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration.”
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump Again Proposes End of Birthright Citizenship
Candidate Donald Trump renewed his pledge to end a long-standing constitutional right, saying he would sign an executive order on day one ensuring children born to parents who do not have legal status will not be considered U.S. citizens, as they are now. “The United States is among the only countries in the world that says even if neither parent is a citizen or even lawfully in the country, their future children are automatic citizens the moment the parents trespass onto our soil,” Trump said. What are Trump’s chances of success with such an executive order?
Since the end of the Civil War, any child born in the U.S. (excluding the children of foreign diplomats, who are not born “subject to the jurisdiction of the United States”) is a citizen, the doctrine of jus soli. This right is written into the 14th Amendment to the Constitution (1868), which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The language was included in the constitutional amendment enacted after the Civil War to ensure former slaves and their children were recognized as citizens.
The rule is simple: born in the U.S. equals for almost everyone citizenship. It does not matter if one or both parents is an illegal alien or in some other status, such as a tourist (see “birth tourism, below.) Changing the rule, as Trump again proposes (Trump pledged to end birthright citizenship when first running for president in 2015 and he raised it again in 2018 as chief executive. But he never issued an executive order), has apart from a nearly insurmountable challenge of needing to amend the Constitution if the Executive Order survives lower courts, also bothers the question of birthright citizenship having been subjected to legal tests dating back to the turn of last century. It is possible the Supreme Court would not even hear the new case as the law is so clear.
Chief among these tests was Wong Kim Ark v. United States (1898). Wong concerned a Chinese man born in the United States to two non-citizen parents. Under the 14th Amendment, he was granted American citizenship at birth. He left the U.S. and upon return was denied entry based on the Chinese Exclusion Act, which prohibited Chinese citizens from entering. Wong fought the case to the Supreme Court, which ruled in his favor, declaring him and all subsequent children born in the U.S. (except diplomats) citizens regardless of their parents’ status. The later case of Plyler v. Doe (1982) eliminated any doubt over whether Wong applies to all aliens, even illegal aliens.
The Supreme Court’s majority concluded the phrase from the 14th Amendment “subject to the jurisdiction thereof” referred to being required to obey U.S. law; on this basis, they interpreted the language of the 14th Amendment in a way that granted U.S. citizenship to children born to foreigners. The dissenters argued being subject to the jurisdiction of the United States meant not also being subject to any foreign power, i.e., not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent. That reading in the minority’s view would exclude “the children of foreigners, happening to be born to them while passing through the country.” The judgment was controversial from the start; an editorial published in the San Francisco Chronicle on March 30, 1898, expressed concern Wong “may have a wider effect upon the question of citizenship than the public supposes.” Specifically, that it might lead to citizenship and voting rights not only for Chinese but also Japanese and American Indians. The editorial suggested that “it may become necessary… to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”
All of this could affect birth tourism. In his last administration, Trump issued an executive order outlawing B1/B2 tourist visas for birth tourism, where an alien comes to the U.S. specifically to give birth here and “create” an American citizen, an “anchor baby,” who will file for legal status for his parents at age 21. Prior to Trump’s E.O., traveling to the U.S. to give birth was fundamentally legal, although there are scattered cases of domestic authorities arresting operators of birth tourism agencies. Women abroad were often honest about their intentions when applying for visas and even show contracts with doctors and hospitals to prove they would not become public charges.
As it stands, visitors will be denied temporary visas if it’s found the “primary purpose” of their travel is to obtain citizenship for a child by giving birth in the United States. The rule does not apply to the 39 countries in the Visa Waiver Program, and State in implementing the E.O. forbids its visa officers from even asking in most cases if an applicant is pregnant, making the order hard to enforce. “This is the first recognition that it’s not OK to use a visitor visa for the purposes of ‘birth tourism,’ so it has a symbolic strength in that respect, at the same time it’s not a very effective way at going after the ‘birth tourism’ industry,” said an analyst at the Migration Policy Institute. While the federal government does not specifically track birth tourism, the Centers for Disease Control and Prevention annually publishes the number of known births in the U.S. to foreign women who reside overseas — around 10,000 such births every year for the past few years.
Though Project 2025 does not mention birthright citizenship, if Trump were to follow through on his plan to issue an executive order on day one, here’s how it might unfold. The Trump campaign said it would order the Social Security Administration to refuse to issue Social Security numbers to newborn children without proof of the parents’ immigration status. Trump would issue the same order to the State Department regarding passports. This would not require any action from Congress and because it would not grant/take away citizenship per se, would not directly rub against the 14th Amendment.
Currently, a U.S. birth certificate is all that is needed to obtain a Social Security number and passport in most cases. The State Department currently considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department’s Foreign Affairs Manual takes the position Wong settled this issue. This means the Trump E.O. would likely be challenged immediately in lower courts and because it does not directly address the 14th Amendment, would be ripe for the Supreme Court to use to revisit Wong indirectly if they wished to. The Court could also side with long precedent and refuse to even hear the case. The latter is the most likely outcome, and Trump’s third try at changing birthright citizenship would end just like his two earlier two.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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