Bad Supreme Court decisions are nothing new, but on the birthright citizenship case, Trump v. Barbara, the justices laid an egg that will hatch some ugly ducklings.
The court ruled that children born here “to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States” and so are citizens at birth under the Fourteenth Amendment.
Under this ruling, foreigners with zero allegiance to the United States can continue to give their children all the benefits of American citizenship with none of the responsibilities.
In 2024, Emma Waters and I wrote about birth tourism and surrogacy by Chinese nationals. Like the Trojan Horse of Greek myth, this is a Hunan Horse that uses the 14th Amendment, and the lack of federal and state laws proscribing surrogacy, to smuggle in millions of aliens as citizens.
Rich Chinese take advantage of birthright citizenship for financial advantage and as an insurance policy. They can get their kids into state schools at lower tuition, and their kids can eventually sponsor them to immigrate. Corrupt Chinese officials, senior military and intelligence officers do the same thing, perhaps with more sinister motives as well. Their kids will be able to vote, join the military and get security clearances for federal jobs.
Wealthy Nigerians, Russians and other aliens, whose money is often the fruit of corruption, also come here using similar birth tourism packages, complete with shopping and spa days.
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But many who abuse birthright citizenship are poor and tap immediately into public benefits. They should be denied visas as likely public charges under U.S. immigration law, but they lie about their assets, ties to home and reason for travel. Also, over the years, consular officers have been told to ignore practically every type of welfare benefit when evaluating this ineligibility.
Every consular officer serving in a third-world country has seen cases of mothers applying for tourist visas who have American citizen children. In nearly all such cases I saw, the mother had not paid her hospital bill for the birth, and in most cases, she had also used welfare and health care programs meant for indigent American mothers and children.
Worse are the cuckoo’s eggs, like “progressive” darling Hasan Piker, born here while his Turkish parents were on student visas. They returned to raise him in Turkey, but he returned to the U.S. to make his fortune spewing antisemitic, anti-American, anti-capitalist bile on the internet.
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You can’t win them all. Trump v. Barbara settled things for now. So, what can be done?
Congress could legislate that for (and only for) the purpose of acquiring U.S. citizenship, the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment does not apply to people whose parents, at the time of their birth, were citizens of other nations. That would bring Justice Brett Kavanagh on board. But there would still be a 5-4 majority, until one of the five were to leave the court and be replaced by one more aligned with Justices Samuel Alito, Clarence Thomas and Neil Gorsuch.
That leaves a long shot: we can and should amend the Constitution. Americans ratified the 13th, 14th, and 15th Amendments that put an end to slavery and its inherent injustice. But those who wrote and ratified the 14th Amendment did so to protect freed Black Americans, not Nigerian millionaires on birth tourism packages.
What is done can be undone: the 18th Amendment banned alcohol, but the 21st Amendment put the beers back in our hands. So, the 14th Amendment must be revised by a new amendment making clear the citizenship and perhaps immigration status that is required of at least one parent for a child born here to become an American citizen at birth.
Meanwhile, Congress and the states can pass laws banning surrogacy and imposing costs on aliens who give birth at U.S. taxpayer expense.
Lax U.S. laws governing international surrogacy allow foreign nationals to “rent a womb” from American women. The resulting children get full American citizenship. Such cross-border surrogacy for hire is not regulated at the national level in the U.S., and about half of U.S. states openly encourage the industry. Indeed, 75% of foreign intended parents used clinics in California. Commercial surrogacy is illegal in China; why do we allow them to do it here, in any state?
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Abroad, the State Department can ratchet up visa adjudication standards in countries known to abuse birthright citizenship. Women of child-bearing age already must show their intent to return, sufficient funds for support and reason for going to the U.S. AI-driven estimations can help inform consular decisions about the risks of issuing them visas.
Furthermore, women who have had prior children in the U.S. on visitor visas, or who have claimed public benefits while in the U.S. shouldn’t be allowed to travel here again for any reason. With AI and better data, consular officers can at least reduce the number of women arriving with the intent of giving birth. And they can certainly stop them returning to repeat it.
Most conservatives hoped for a win but knew it was likely we’d lose Barbara. We have no time to sulk – the tools are there to mitigate the damage, and we should use them.
