DOJ Vows Crack Down on Birth Tourism in Response to ‘Birthright’ Opinion

On June 30, the Supreme Court issued its long-awaited opinion in Trump v. Barbara, concluding on constitutional and (ancient) common-law grounds that every child born in the United States is a U.S. citizen, with only limited exceptions. There’s little Congress and the executive branch — even acting in tandem — can do about it, short of a constitutional amendment that would also involve the states (bon chance), but DOJ quickly responded to that decision by announcing it would prune the lowest-hanging fruit on the “birthright citizenship” tree: “birth tourism”. If the department is successful, it would be the silver lining in the dark Barbara cloud.

Barbara in brief

A 5-4 majority of the Court (Chief Justice Roberts joined by Justices Sotomayor, Kagan, Barrett, and Jackson) held that under the “citizenship clause” in section 1 of the 14th Amendment, every child born to foreign parents on U.S. soil is a U.S. citizen, except for children of certain diplomats and those born in areas of foreign occupation and on foreign public ships.

Justice Kavanaugh in concurrence would have struck down Trump’s executive order (EO) at issue (which de facto denied citizenship to the children of illegal aliens and temporary nonimmigrants) on procedural grounds, arguing the EO violated the citizenship definition in section 301(a) of the Immigration and Nationality Act (INA), but he failed to pull enough justices to his position to form a majority.

That was the outcome I expected, and one that would have allowed Congress to amend the statute to narrow the otherwise expansive current definition of birthright citizenship, but then decisions like this are why I joke that I never bet on two things: college basketball games and SCOTUS opinions.

Justice Kavanaugh’s position would have been more consistent with the Court’s usual adherence to the principle of “constitutional avoidance”, that is ducking constitutional questions when there are easier procedural ones to rely on in dispensing with an issue, but the chief justice likely wanted to resolve this issue once and for all without letting it fester (and get out of town; this was the last opinion of the term).