Critics of birthright citizenship keep pushing for restrictions

Rep. Brandon Gill, R-Texas, and Sen. Jim Banks, R-Ind., earlier this month proposed legislation that would withhold citizenship from the children of individuals who traveled to the United States to give birth and thereby obtain U.S. citizenship for their newborns.

“Millions of illegal aliens & birth tourists invaded our country,” Banks wrote on the social media platform X announcing the maneuver. “The Citizenship Act calls these illegal aliens what they are—invaders—& denies their children birthright citizenship.”

The proposal came just weeks after the U.S. Supreme Court upheld birthright citizenship in a split ruling. The court struck down President Donald Trump’s January 2025 executive order that prevented the U.S.-born children of foreign nationals who aren’t lawful permanent residents from receiving automatic U.S. citizenship. A majority of high court justices upheld the long-standing view that the 14th Amendment confers U.S. citizenship on most children born to foreign nationals in the United States, but their interpretation hasn’t settled the debate.

While immigration advocates have rejoiced in the court’s ruling, many critics of the decision say the fate of birthright citizenship isn’t fully decided. Now the Trump administration and other advocates are looking anew for ways to restrict birthright citizenship and curb birth tourism despite the court ruling.

The Supreme Court on June 30 ruled that any children born to illegal immigrants and aliens in the United States on temporary visas were subject to the jurisdiction of the United States and therefore received U.S. citizenship at birth. The case appeared before the court following legal challenges to Trump’s executive order, which he signed on the first day of his second term in office.

“Unfortunately, I think Chief Justice John Roberts, who wrote the opinion in that case, he just got the wrong result in this case based on the text of the 14th Amendment itself,” said Zack Smith, a senior legal fellow at the Heritage Foundation. “If you go back and look at the text of the 14th Amendment, a lot of the conversation revolved around what one phrase in that text meant.”

The 14th Amendment says, “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.” According to Smith, the key section that should have turned the court’s reasoning was the phrase “subject to the jurisdiction thereof.”

Smith argued that the phrase defined a category of people as eligible for citizenship that would have excluded the children of illegal immigrants or those on temporary visas. “That ‘and subject to the jurisdiction thereof’ language had a very specific meaning, a very technical meaning that would have been understood by those who adopted and ratified the 14th Amendment to essentially mean only those who are here and who are part of our political community,” he said.

But the high court ruled last month that the category of individuals “subject to the jurisdiction” of the United States includes the children of illegal immigrants. The court’s decision reaffirmed the long-standing interpretation expressed by legal scholars and derived from court precedent.

Jennie Murray, president and CEO of the National Immigration Forum, said she was ecstatic that the court had upheld a traditional understanding of birthright citizenship.

“It was just anticipated, but you know, in this moment in time, I don’t take anything for granted,” Murray told WORLD. “It really proclaimed that this is actually exactly what our nation’s leaders anticipated we would be and that the Constitution would keep us moving in this direction to be a place where people across the world come together to become American.”

But earlier this month, President Donald Trump said he would ask the court to rehear the case. Parties that lose before the U.S. Supreme Court can ask for a rehearing within 25 days, though the court rarely agrees to rehear cases and even more rarely changes course on those cases.

While most of the options for making the high court view the question of birthright citizenship’s constitutionality differently appear to have failed, administration supporters say there are other ways to address the problems that birthright citizenship has allowed to fester.

Andrew Arthur, a former immigration judge and senior legal fellow at the Center for Immigration Studies, explained that U.S. citizenship grants individuals the ability to vote in American elections, get security clearances, and, for U.S.-born citizens, even become president. That means adversaries of the United States can send their nationals who possess U.S. citizenship to the United States to advance their interests, Arthur explained.

“We need to make sure that our own Constitution isn’t weaponized against us,” he said.

Also, U.S. citizens have an easier time claiming benefits from U.S. social services and welfare programs. The initial complaint in the case that later came before the U.S. Supreme Court as Trump v. Barbara prominently featured a claim that the children of foreign nationals would lose access to Supplemental Nutrition Assistance Program benefits and medical care in the United States if they lost their citizenship.

Since the court’s June 30 decision, the executive branch and Congress have taken steps to ensure that the Constitution isn’t weaponized against Americans. The U.S. Department of Justice, shortly after the court’s ruling, ordered its employees to prioritize prosecuting individuals who may have engaged in so-called birth tourism, where expectant mothers come to the United States, give birth, and then leave shortly thereafter as the parent of a new U.S. citizen. Meanwhile, U.S. House Speaker Mike Johnson has also reportedly started considering legislative measures to crack down on birth tourism. Even before the Supreme Court issued its decision, the U.S. State Department was already taking steps to crack down on birth tourism schemes.

Jennie Murray from the National Immigration Forum pointed out that birth tourism and birthright citizenship are two different things.

“‘Birth tourism’ refers to the rare situation where travelers enter the U.S. on tourist visas with the primary purpose of having a child born here,” Murray said, suggesting the practice could be addressed through reforms to the tourist visa processing system. “Birthright citizenship is based on the 14th Amendment to the Constitution, which … guarantees that anyone born on United States soil is granted American citizenship.”

Murray argues some voices have conflated the two issues in order to suggest foreign nationals are taking advantage of the U.S. immigration system.

“I think that’s why you see folks, instead of talking about birthright citizenship, now they’re talking about birth tourism,” she said. “It’s … still trying to push at that same feeling.”

But many critics argue that isn’t just a narrative—it’s a problematic reality, and it requires more than just an executive branch crackdown on birth tourism to rectify it.

The Center for Immigration Studies, which analyzed U.S. Census Bureau and U.S. Centers for Disease Control and Prevention data, estimates that somewhere between 18,000 and 36,000 babies are born each year in the United States as a result of birth tourism.

“Birthright citizenship has served as a magnet for illegal immigration and undermined both the rule of law and the sacred honor of American citizenship. If the courts will not correct this error, then we will,” said Heritage Foundation President Kevin Roberts in a statement following the ruling.

Roberts called for a constitutional amendment clarifying that citizenship is reserved for lawful members. “America’s future depends on restoring the integrity of citizenship, and we intend to see that fight through to victory,” he said.

Heritage’s Zack Smith later described it as an “all-hands on deck” approach to tackling the issues of birthright citizenship.

Jennie Murray said it was unlikely advocates would succeed in passing an amendment to the U.S. Constitution. Andrew Arthur argued that congressional action, such as what Sen. Banks and Rep. Gill are proposing, might provide an easier way to resurface the question of birthright citizenship’s constitutionality.

“If Congress were to act to narrow the definition in Section 301 of the [Immigration and Nationality Act] and limit birthright citizenship, the court would have to review that anew,” Arthur said. “The ball is really now in Congress’ court.”

Arthur said lawmakers could pass a measure stating that illegal immigrants or nonimmigrant visitors aren’t subject to U.S. jurisdiction. “The court would have to review that under a much more favorable standard than they did with the executive order,” he said, adding that the justices could potentially rule differently in that instance.

But while the executive branch continues to crack down on birth tourism, and the legislative branch weighs its options, Jennie Murray and other advocates are expressing relief at where the court has currently drawn the line on U.S. citizenship, even as they expect battles to continue.

“I am worried that people are going to try to still kind of tap into the messaging that has been around the case,” Murray said. “But I am not worried about this particular court or this generation of court making a different decision on birthright citizenship.”