The majority opinion Trump v. Barbara, written by Chief Justice John Roberts, upheld birthright citizenship as a constitutional right even for parents who are unlawfully or temporarily present in the country — enraging conservatives who argued that those individuals should not be considered “subject to the jurisdiction” of the United States per the 14th Amendment.
That sweeping standard blocks out pathways for Congress and the Trump administration to restrict citizenship for babies born to parents only briefly or illegally in the U.S., meaning it would take either another Supreme Court opinion or constitutional amendment to change that standard.
But some are eyeing things Congress or the executive branch can do to push back anyway.
Mike Howell, president of the Oversight Project, said the ruling underscores the need for the Trump administration to ramp up mass deportations and further crack down on who is admitted into the country.
“You don't have illegal aliens having birthright anchor babies if illegal aliens aren't in the country,” he told me. “Deporting the illegal alien parents of anchor babies — and then they can take their kid home with them. I think that's like the commonsense response, if this is the civilizational crisis which its critics say it is.”
The Oversight Project suggested suspending visas to any countries that engage in “birth tourism,” and positioning Immigrations and Customs Enforcement (ICE) at hospitals and birth centers. Howell also suggested “limiting the travel of pregnant women” through ideas like having people pay a bond that is not recoverable if they have a baby in the U.S.
Some Republican lawmakers in Congress are planning or have introduced legislation to try to chip away at the decision by targeting “birth tourism” or defining which individuals are not “subject to the jurisdiction thereof,” and then defunding agencies or jurisdictions who recognize such individuals as citizens. (I wrote about some of those proposals over here.)
Lawmakers were encouraged by Justice Brett Kavanaugh’s concurring decision that said President Trump’s executive order was not legal but stipulated that Congress could “amend” federal law “or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”
One bill from Rep. Andy Ogles (R-Tenn.), called the “Anchors Away Act,” would allow babies to be citizens only if they are born to U.S. citizens, those with lawful permanent status, or those with lawful status and serving in the military. And it would restrict pregnant foreign nationals from entering the U.S. as nonimmigrants unless they are married to a U.S. citizen.
Girdursky, though, said that kind of incremental approach wouldn’t work legally, even if it did have a feasible chance of getting through Congress. He doesn’t see any other way of changing the standard but waiting for the makeup of the Supreme Court to change — and ensuring that justices who would overturn the decision are in place to “get the court right on this very important issue.”
“Does America have any right to say who does and doesn't have the ability to become your fellow countrymen?” Girdursky said. “I mean, this is a really existential question, and the decision shouldn't lay, as Roberts said, with medieval British laws.”
“The children of El Chapo are American citizens because their father, who was a murderer and was flooding our country with drugs, got born on the right side of the border,” Girdusky said. “And the Supreme Court ruled there's nothing we could do about it, because of an archaic British law around subjecthood when it comes to how the king managed people.”
Unlike the anti-abortion movement after Roe v. Wade, immigration restrictionists have fewer ground-up approaches they can take. Citizenship is an explicitly national issue and is not the kind of thing that could be slowly challenged all over the country from the ground up at the state level; there is no “leave it to the states” argument here.
Howell, though, is looking to other ways to alter the trajectory of national power related to mass deportations and birthright citizenship — including winning in redistricting cases across the country to shore up Republican power and having a 2030 Census that counts only citizens for the purposes of congressional apportionment.
“The comparison to the pro-life movement, I get it. That's the example of one sustained long-term movement. There needs to be such a movement around the cause for mass deportation,” Howell said.
Mass deportations and immigration should be similar, he said.
“If you're not good on deportations, I don't think there's a long-term path in the Republican Party. It's going to be a litmus test issue,” Howell said. “There's a lot of people who have the entrenched power of incumbency, who were terrible on the issue. But moving forward, it's going to get better over time with candidate selection, both for elected office, and then also, judgeships.”
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