The Supreme Court heard oral arguments on Wednesday in the case challenging an executive order attempting to end birthright citizenship for the children of illegal immigrants and individuals on temporary legal status. The Court seems poised to reject the administration’s arguments pertaining to the Fourteenth Amendment, as several justices (including Trump appointees) appeared skeptical of their rationale. Constitutional scholars have long noted that the Constitution is clear on the matter: the children of immigrants are Americans.
Trump attended the oral arguments and, shortly after, posted on social media that “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” [sic]. Trump is wrong about the facts— almost every country in the Western hemisphere has birthright citizenship. But he’s also wrong in his characterization of America as “stupid” for allowing it.
Birthright citizenship is a feature, not a bug, that drives assimilation for the children of immigrants and creates more Americans. Alex Nowrasteh of the Cato Institute notes that birthright citizenship makes it so “every descendant of immigrants has a stake in this nation and does not grow up in a legal underclass.”
We don’t need to speculate about what would happen if such an underclass were created. Nowrasteh cites the example of Germany where, in order to get citizenship, children had to be born to at least one German parent. He notes that the lack of citizenship is one of the causes that drove resentment against Germany and only partial allegiance to the country. “German-born noncitizens formed ‘parallel societies’ and were more prone to crime and political radicalism than German-born German citizens,” Nowrasteh concludes. He goes on to note that the German case prompted many studies that suggest the detrimental effects of ending birthright citizenship— effects that would likely happen in America if Trump succeeds.
Trump’s executive order doesn’t just target the children of illegal immigrants— it also targets the children of people who are legally present in the U.S. on temporary legal status like visas, and don’t have a U.S. citizen parent. Children of students, specialty workers, and exchange visitors are included. Some of these visa holders, like those on H-1B visas, have been living and working in America for years and are awaiting their turn to get permanent residency. As part of building a life here, many of them have children. If Trump’s executive order survives, these children won’t be U.S. citizens— and it’s unclear what status they would hold.
The practicality and implementation of Trump’s executive order remains a question— as noted by Justice Ketanji Brown Jackson during oral arguments on Wednesday. But one likely possibility is that newborns whose parents are illegal immigrants or visa holders would themselves become illegal immigrants.
Last year, Justice Sonia Sotomayor wrote in her dissent in Trump v. CASA that the executive order “may even wrench newborns from the arms of parents lawfully in the United States . . . Those newborns could face deportation, even as their parents remain lawfully in the country.” (If you think the government wouldn’t deport a newborn, think again— they have already done so when they detained and deported two-month-old Juan Nicolás, who was also sick, to Mexico.)
Deportation is not the only consequence the children of immigrants could face if they become illegal immigrants from birth. They wouldn’t enjoy the same rights as Americans or even legal immigrants. They would be forced to live in the shadows and be unable to work legally, travel safely, and live up to their full potential as Americans get to do. America’s assimilation model is remarkable in part thanks to birthright citizenship, as the children of immigrants get to enjoy all the unique freedom this country provides. Ending it would only foster exclusion and we would all be worse off for it.
A recent Pew study suggests that about 9% of births (320,000) in the U.S. were to illegal immigrant or temporary legal immigrant mothers. Of those, about 260,000 would not have qualified for citizenship under Trump’s executive order. That means that the illegal immigrant population would’ve potentially grown by that number in just a year. 260,000 would-be Americans would’ve been ostracized by the legal system and unable to live free and thrive.
One of the arguments against birthright citizenship relates to “birth tourism” — the practice of coming to America on a visitor visa just to give birth. But this issue has been blown out of proportion. The federal government doesn’t even track it. The closest thing to an official estimation comes from the CDC’s tracking of the home addresses of new mothers. There were 9,500 births to mothers who reported a foreign address, which is statistically insignificant. Detractors cite “national security” concerns, but it’s unclear what those are — there is no evidence of a threat stemming from this practice. Attempting to do away with a constitutionally protected right based on an insignificant percentage of people who allegedly try to “game the system” is what’s “stupid,” to use the President’s own language, not the policy of birthright citizenship itself. If this ever becomes an issue, it can be addressed narrowly.
America is not “stupid” for having birthright citizenship. What would be stupid is mandating the creation of a permanent underclass, driving the resentment and parallel societies that plagued Germany — and doing so in defiance of the Constitution.
Birthright citizenship is not a threat to be quashed, it’s one of the mechanisms by which America remains strong.
Agustina Vergara Cid is a columnist for the Southern California News Group. Follow her on X: @agustinavcid