Almost overnight, birthright citizenship has become a contentious debate in America. President Trump signed an executive order in January to narrow the practice. Federal courts stepped in to overturn its effect, seemingly ending the matter. But now the issue will be decided by the nation's highest court.
The Supreme Court is expected to hand down a ruling this summer in the first major test of a Civil War era amendment on birthright citizenship. The law hinges on the 14th Amendment to the Constitution, ratified in 1868, to guarantee the rights of citizenship to protect the status of freed American slaves.
Georgetown law professor Jonathon Turley, a recognized legal scholar, has written extensively on Constitutional Law. In an opinion column after the SOCTUS hearing, he reminded that many leaders have opposed birthright citizenship, including former Senate Majority Leader Harry Reid, a Democrat.
In 1993, Reid introduced the Immigration Stabilization Act, a sweeping law that would have cleared up the fog over the 14th Amendment by narrowing birthright citizenship. His unsuccessful measure would have required the birth mother to be a U.S. citizen for her baby to be recognized as a U.S. citizen.
Those who argue the 14th Amendment is clear on birthright citizenship are being less than honest, Turley says. No one argues the original intent. Over the years, the high court has heard cases on the law's application in different situations. Despite the rulings, a fair amount of ambiguity remains.
In any event, it is disingenuous to contend the authors of the amendment could foresee today's complex immigration landscape. Millions of illegal immigrants have given birth to children who are granted immediate citizenship. A cottage industry of birth tourism has arisen to take advantage of the loophole.
Understanding the issue rests on interpretation of the 14th amendment. Section 1 reads as follows:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
This may sound straightforward, but the other four sections deal specifically with slaves, including the counting of freed slaves for the apportionment of U.S. representatives. Section four denies government obligation for the loss of "emancipation of any slave." Clearly, the amendment addressed only slaves.
Neither the Supreme Court in past decisions nor Congress has clarified that U.S. born children of illegal or non-permanent resident aliens have a claim of birthright citizenship.
In fact, one of the amendment's coauthors, Senator Jacob Howard, assured his colleagues the amendment would not "of course include persons born in the United States, who are foreigners, aliens or who belong to the families of political jurisdiction, and not subject to a foreign power."
In the aftermath of Trump's executive order, there have been many mischaracterizations of the president's intent. The most outrageous came from a Harvard law professor who posted on social media that the president was pursuing some antebellum agenda to overturn the outcome of the Civil War.
Partisanship has replaced common sense. There are circumstances today that could not have been foreseen in 1868 regarding citizenship.
For instance, during the Biden Administration a conservative estimate of 10 million illegal immigrants entered the country. Pew Research, using 2023 Census data, estimated 13.7 million-to-14 million persons living in the country are non-citizens. The Federation for American Immigrant Reform (FAIR) puts the number as of 2025 at 18.6 million.
In 2023, mothers who were "unauthorized immigrants" or had temporary status in the U.S. had 320,000 babies, according to Pew Research. That represents about nine percent of the 3.6 million babies born that year. Pew derived the data from Census Bureau surveys.
A deep dive into the data, shows that 245,000 babies were born to mothers who were "unauthorized immigrants" and fathers who were not citizens or permanent residents. Another 15,000 babies were born to mothers who had legal temporary status and fathers who were not citizens.
Each one of those babies is now a citizen of the United States, despite the illegal status of their parents. Pew noted in its research report that "some mothers get temporary visas specifically to secure U.S. citizenship for their newborns."
Citizens of China have taken advantage of birth tourism to exploit the unconditional birthright citizenship process. Evidence suggests thousands of Chinese nationals have traveled to the U.S. as tourists annually. Experts estimate between 30,000 and 50,000 births per year prior to the pandemic.
Hundreds of sham agencies operate in California to accommodate pregnant Chinese women providing "maternity hotels" and travel support. The illegal operators coach women on how to trick customs officials when they fly to U.S. airports, hiding their baby bumps by wearing loose fitting outfits.
Chinese women turn to birth tourism to gain U.S. citizenship for their children, which offers benefits including access to an American college education. Once their children turn 21, the foreign birth mothers can also apply for permanent residency in the U.S.
Last year a California woman was sentenced to three years in prison for helping pregnant Chinese females travel to the U.S. to deliver babies. The California woman and her husband were charged with conspiracy and money laundering through their company, USA Happy Baby.
More than a dozen people were charged in an Obama-era crackdown on birth tourism schemes. There are estimates that a cumulative 1.5 million U.S. babies are currently being raised in China. Few Americans are aware of the loophole created by lax interpretation of the 14th Amendment.
Commercial surrogacy is another lucrative way to gain U.S. citizenship. It involves hiring a an American woman to gestate a child for a fee, which can go as high as $60,000. The practice, dubbed rent-a-womb, allows foreign nationals to ship eggs and sperm to the U.S. Other foreigners come to the U.S. for fertility treatments to avoid shipping.
Is this what the 14th Amendment framers envisioned? The answer is obvious.
As the debate over birthright citizenship has simmered, Democrats have peddled the lie that the U.S. would be out of step with the rest of the world if it put conditions on birthright citizenship. That is factually incorrect. Unconditional birthright citizenship is restricted to the Americas, including Canada, Mexico, Brazil, Argentina and about 30 other countries.
Overwhelming, most nations including European countries, place conditions on birthright citizenship. In fact, many countries are ending automatic birthright citizenship instead of following the permissive policy of the U.S. New Zealand is just the latest example. Children born in the country now only gain citizenship only if one parent is a citizen or permanent resident.
If the Supreme Court, as expected, refuses to overturn unconditional birthright citizenship, Americans should demand that Congress approve legislation to recognize citizenship only if one parent is a citizen or a permanent resident. Granting U.S. citizenship should be should be an inviolable right not a womb free-for-all.