USA: Ending Birthright Citizenship Is Harder Than It Sounds
2024/08/27 Leave a comment
Good analysis:
….All of this could affect birth tourism. In his last administration, Trump issued an executive order outlawing B1/B2 tourist visas for birth tourism, where an alien comes to the U.S. specifically to give birth here and “create” an American citizen, an “anchor baby,” who will file for legal status for his parents at age 21. Prior to Trump’s EO, traveling to the U.S. to give birth was fundamentally legal, although there are scattered cases of domestic authorities arresting operators of birth tourism agencies. Women abroad were often honest about their intentions when applying for visas and even showed contracts with doctors and hospitals to prove they would not become public charges.
As it stands, visitors will be denied temporary visas if it is found the “primary purpose” of their travel is to obtain citizenship for a child by giving birth in the United States. The rule does not apply to the 39 countries in the Visa Waiver Program, and the State Department in implementing the EO forbids its visa officers from even asking in most cases if an applicant is pregnant, making the order hard to enforce.
“This is the first recognition that it’s not OK to use a visitor visa for the purposes of ‘birth tourism,’ so it has a symbolic strength in that respect, at the same time it’s not a very effective way at going after the ‘birth tourism’ industry,” said an analyst at the Migration Policy Institute. While the federal government does not specifically track birth tourism, the Centers for Disease Control and Prevention annually publishes the number of known births in the U.S. to foreign women who reside overseas—around 10,000 such births every year for the past few years.
If Trump were to follow through on his plan to issue an executive order on day one, here’s how it might unfold. The Trump campaign said it would order the Social Security Administration to refuse to issue Social Security numbers to newborn children without proof of the parents’ immigration status. Trump would issue the same order to the State Department regarding passports. This would not require any action from Congress and because it would not grant/take away citizenship per se, would not directly rub against the 14th Amendment.
Currently, a U.S. birth certificate is all that is needed to obtain a Social Security number and passport in most cases. The State Department currently considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department’s Foreign Affairs Manual takes the position Wong settled this issue.
This means the Trump EO would likely be challenged immediately in lower courts and because it does not directly address the 14th Amendment, would be ripe for the Supreme Court to revisit Wongindirectly if they wished to. The Court could also side with long precedent and refuse to even hear the case. The latter is the most likely outcome, and Trump’s third try at changing birthright citizenship would end just like his earlier two.
Source: Ending Birthright Citizenship Is Harder Than It Sounds
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