ICYMI: At Supreme Court, a Once-Fringe Birthright Citizenship Theory Takes the Spotlight

2025/05/20 Leave a comment

Useful analysis of some of the usual suspects of “fringe” legal theories:

Shortly after the Supreme Court announced in April that it would consider the nationwide freeze on President Trump’s executive order ending birthright citizenship, he gleefully spoke to reporters in the Oval Office.

Mr. Trump said that he was “so happy” the justices would take up the citizenship issue because it had been “so misunderstood.” The 14th Amendment, he said — long held to grant citizenship to anyone born in the United States — is actually “about slavery.”

“That’s not about tourists coming in and touching a piece of sand and then all of the sudden there’s citizenship,” Mr. Trump said, adding, “That is all about slavery.”

For more than a century, most scholars and the courts have agreed that though the 14th Amendment was added to the Constitution after the Civil War, it was not, in fact, all about slavery. Instead, courts have held that the amendment extended citizenship not just to the children of former slaves but also to babies born within the borders of the United States.

The notion that the amendment might not do so was once considered an unorthodox theory, promoted by an obscure California law professor named John Eastman and his colleagues at the Claremont Institute, a conservative think tank — the same professor who would later provide Mr. Trump with legal arguments he used to try to overturn the results of the 2020 presidential election.

The story of how the theory moved from the far edges of academia to the Oval Office and, on Thursday, to the Supreme Court, offers insight into how Mr. Trump has popularized legal theories once considered unthinkable to justify his immigration policies.

“They have been pushing it for decades,” said John Yoo, a law professor at the University of California, Berkeley, School of Law and a top lawyer in the George W. Bush administration. “It was thought to be a wacky idea that only political philosophers would buy. They’ve finally got a president who agrees.”

The White House did not respond to requests for comment.

President Trump promoted the theory during his first campaign but did not act on it until his second term. He signed an executive order on his first day to end birthright citizenship for the children of undocumented immigrants and some temporary foreign residents.

Legal challenges were swift and emphatic. Challengers pointed to the text of the 14th Amendment, which states, “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.”

Proponents of the policy have pointed to birthright citizenship as a cornerstone of what it means to be an American, part of the national ethos of the country as a place that is open to everyone, regardless of faith, color or creed. Of the world’s 20 most developed countries, only Canada and the United States grant automatic citizenship to children born within its borders. 

In a brief to the Supreme Court, an immigrant advocacy group argued that “birthright citizenship is at the core of our nation’s foundational precept that all people born on our soil are created equal, regardless of their parentage.”

State attorneys general who are challenging the policy weighed in with a brief that argued that the Supreme Court had already settled the question in the landmark 1898 case of United States v. Wong Kim Ark, when the court found that a man born in San Francisco to Chinese parents was a citizen.

So far, courts have agreed. Judges in Washington State, Massachusetts and Maryland quickly instituted nationwide pauses on Mr. Trump’s policy.

In oral arguments this week, the justices will primarily consider whether federal judges have the power to order these temporary pauses, known as nationwide injunctions. But the question of birthright citizenship will form the backdrop.

In an interview, Mr. Eastman said he developed his views on birthright citizenship after the terrorist attacks on Sept. 11, 2001.

Back then, Mr. Eastman, who had clerked for Justice Clarence Thomas, was a law professor at Chapman University in Orange County, Calif., and director of the Center for Constitutional Jurisprudence at the Claremont Institute.

In late November 2001, a man named Yaser Esam Hamdi was taken into custody by U.S. forces in Afghanistan and transferred to the U.S. military base/prison at Guantánamo Bay.

Officials learned Mr. Hamdi was an American citizen. His mother, a Saudi national, had given birth to him while the family was living in Baton Rouge, La., where Mr. Hamdi’s father was working as a chemical engineer.

Because Mr. Hamdi was a U.S. citizen, the authorities believed they could no longer hold him as an “enemy combatant” in Guantánamo Bay, where he was considered beyond the reach of the full legal protections of federal courts. They transferred him to a naval brig in Norfolk, Va.

In a 2004 friend-of-the-court brief in the case, Mr. Eastman argued that the idea that citizenship was automatically conferred on all children born on American soil was a “generally accepted though erroneous interpretation” of the 14th Amendment that was “incorrect, as a matter of text, historical practice and political theory.”

Mr. Eastman drew on the work of a California State University, San Bernardino political science professor affiliated with the Claremont Institute, Edward J. Erler, who had offered the same theory in books published in 1997 and 2003.

Mr. Erler, who did not respond to a request for comment, arguedthat the children of people in the country illegally, or temporarily, are not automatically citizens.

Although the idea that children born in the United States automatically become citizens has deep roots in the common law, it was not adopted in the text of the Constitution until 1868, as part of the 14th Amendment. It came in a sentence that overturned Dred Scott, the 1857 Supreme Court decision that affirmed slavery and helped prompt the Civil War.

Mr. Eastman claimed that nowhere during the debate over the 14th Amendment had lawmakers agreed to include temporary visitors.

The justices rejected this view, finding that the Constitution’s due process protections applied to Mr. Hamdi.

Still, for years afterward, Mr. Eastman and Mr. Yoo publicly debated the issue, with Mr. Eastman arguing his theory that birthright citizenship was not in the Constitution and Mr. Yooarguing it was.

For much of that time, the debate felt abstract, Mr. Yoo said, of interest mostly to legal scholars.

“Never has an abstract idea had such enormous policy effects,” he said. “It’s like it almost just jumped from law review articles to the White House.”

That leap happened when Mr. Trump ran for president in 2015.

In an interview with the Fox News personality Bill O’Reilly in August 2015, Mr. Trump outlined his plans to overhaul the immigration system. Mr. O’Reilly seemed skeptical at first, and then increasingly frustrated.

Mr. O’Reilly pointed to the 14th Amendment as an impediment to Mr. Trump’s plan. But Mr. Trump responded, “I think you’re wrong about the 14th Amendment.”

“I can quote it — do you want me to quote you the amendment,” Mr. O’Reilly said, nearly shouting. “If you’re born here, you’re an American — period! Period!”

“But there are many lawyers, many lawyers are saying that’s not the way it is,” Mr. Trump responded.

Mr. Eastman said Mr. Trump was “likely” referring to him but also to other academics who had published on the issue. He said he was not sure how his views had reached the presidential candidate.

Mr. Trump did not pursue a plan to end birthright citizenship in his first term. Mr. Eastman said that in 2019 he met with Attorney General William P. Barr at Mr. Barr’s invitation to discuss a possible executive order on birthright citizenship but that nothing came of it. Mr. Barr did not respond to a request for comment.

Mr. Eastman said he was “very happy” when Mr. Trump announced he would end birthright citizenship on his first day back in office.

By then, Mr. Eastman and Mr. Trump had a close association. Mr. Eastman was one of the architects of a plan to create fake slates of pro-Trump electors in states that Joseph R. Biden Jr. won and to urge Vice President Mike Pence to accept those slates while presiding over the certification of the 2020 election.

A California judge recommended that Mr. Eastman be disbarred over the episode. He said he was appealing, though his California law license is currently inactive as a result. He is also fighting criminal charges that are slowly making their way through state court in Arizona. (A case against him and other defendants in Georgia appears unlikely to go forward.)

Mr. Eastman said that the president did not directly consult him about the birthright citizenship order but that several of his friends, whom he declined to name, were involved. “They knew that my scholarship was kind of at the forefront of this,” he said.

Mr. Trump’s order fueled new interest in examining the underpinnings of birthright citizenship, said Ilan Wurman, a law professor at the University of Minnesota and author of a book on the 14th Amendment.

“President Trump has a rather uncanny ability to move Overton windows — issues that people thought were off the table are on the table,” Mr. Wurman said.

Mr. Wurman argues that a close read of the 1898 case and the historical record reveals that the Supreme Court has never firmly held that children born to those illegally present are citizens.

A flurry of friend-of-the-court briefs have brought some of these ideas to the justices, including one from Mr. Eastman.

In a brief to the justices in late April, he argued that although the justices had agreed to hear arguments only about the nationwide pause on the president’s policy, that they should also decide the merits and end birthright citizenship.

“There are a lot of people in the country waiting for resolution of this issue,” he said. “Is the executive order valid or not? And the longer we wait, the more consternation it’s caused.”

Source: At Supreme Court, a Once-Fringe Birthright Citizenship Theory Takes the Spotlight

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MPI: Repealing Birthright Citizenship Would Significantly Increase the Size of the U.S. Unauthorized Population

2025/05/20 Leave a comment

Of note. Canadian non-resident self-pay births for temporary residents and those on visitor visa suggest equivalent Canadian numbers of those who could be affected would be around 5,000:

Ending birthright citizenship for children born on U.S. soil to unauthorized immigrants or certain other non-citizens would have a contrary result from its stated aim of reducing the unauthorized immigrant population. New estimates from the Migration Policy Institute (MPI) and Penn State’s Population Research Institute demonstrate how repeal would significantly swell the size of the unauthorized population—now and for generations to come. 

The new projections show that ending birthright citizenship for U.S.-born children with parents who are either unauthorized immigrants or temporary visa holders (or a combination of the two) would increase the unauthorized population by an additional 2.7 million by 2045 and by 5.4 million by 2075. 

Each year, an average of about 255,000 children born on U.S. soil would start life without U.S. citizenship based on their parents’ legal status, the research shows. 

President Donald Trump on his first day back in office signed an executive order ending birthright citizenship for children born to certain non-citizens. The order, which has been stayed by the courts amid questions over its constitutionality, specifies that going forward, only children born to at least one U.S.-citizen or lawful permanent resident parent would automatically acquire U.S. citizenship. The Supreme Court on Thursday will hold an oral argument on the issue. 

Beyond significantly adding to an unauthorized immigrant population that MPI estimates stood at 13.7 million as of mid-2023, the end of birthright citizenship for many children would create a self-perpetuating, multi-generational underclass—with U.S.-born residents inheriting the social disadvantage borne by their parents and even, over time, their grandparents and great-grandparents. By 2075, there would be 1.7 million U.S. born who were the children of two parents who had themselves been born in the United States, yet would nonetheless lack legal status, the authors estimate. 

“This creation of a class of U.S.-born residents deprived of the rights that citizenship conveys to their neighbors, classmates and work colleagues could sow the seeds for significant disruption to economic mobility and social cohesion in the years and decades ahead,” Jennifer Van Hook, Michael Fix and Julia Gelatt write in the analysis published today. 

The researchers’ projections use assumptions that in-migration, out-migration and fertility rates will hold steady. Yet even if the U.S. government fully sealed the border against illegal entries and ramped up deportations significantly, changes to birthright citizenship would still result in an unauthorized population that is 1.3 million larger in 2045 than it would be if current birthright citizenship interpretations held. 

Read the analysis here: www.migrationpolicy.org/news/birthright-citizenship-repeal-projections. 

Source: Repealing Birthright Citizenship Would Significantly Increase the Size of the U.S. Unauthorized Population

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French parliament restricts birthright citizenship in Mayotte

2025/04/10 Leave a comment

Of note:

France’s parliament on Tuesday definitively adopted a bill to restrict citizenship rights for children born in its Indian Ocean overseas territory of Mayotte.

The bill put forward by the right does not affect the “right of soil”, also known as “jus soli”, for the rest of France.

But critics on the left have slammed the bill as a concession to the anti-immigration far right and fear it paves the way for restrictions nationwide.

At present, a child born in France to foreign parents can be granted French nationality from the age of 13, provided he or she has spent a certain amount of time in France.

But further conditions have existed since 2018 for Mayotte, a French archipelago that attracts a large number of migrants from its poorer neighbour, the Comoros islands, who travel there irregularly seeking a better life.

Until now, children born there additionally needed to have a parent who had resided there legally for at least three months at the time of birth to apply for nationality.

With the new bill, both parents will need to have legally lived there for at least a year, with an exception in place for single parents.

The Senate approved a final text on Thursday, and members of the lower-house national Assembly backed it on Tuesday.

Source: French parliament restricts birthright citizenship in Mayotte

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Trump Immigration Order Could Cost Americans $3,000 Per Baby

2025/04/04 Leave a comment

When the Harper government made a push for ending birthright citizenship, initial analysis included a cost estimate of $300,000 that would be absorbed by the government, not additional fees for those applying (the documents that I received from ATIP did not indicate any cost recovery plans). Given provincial opposition and the smaller numbers known at that time, the government dropped any change to current birthright citizenship.

Much simpler to do in Canada as the previous analysis indicated but like anything in government, always some complications to address:

Ending birthright citizenship would be chaotic and costly for many Americans due to new fees, paperwork requirements and other issues. So far, the constitutionality of Donald Trump’s executive order, which would no longer guarantee a child born on U.S. soil is an American citizen, has dominated the discussion. While critics and supporters of birthright citizenship have highlighted the legal issues, few people have examined the practical effects. Implementing the policy would create significant financial burdens for U.S.-born and immigrant parents. If the Trump administration succeeds in ending birthright citizenship, it will turn each birth in America into a federal event.

The Immigration Order Would Bring The Federal Government Into The Delivery Room

A National Foundation for American Policy analysis finds the Trump administration would impose a $3,000 or higher “birth tax” for each baby born in the United States to carry out the executive order ending birthright citizenship. The cost includes Form N-600, the 14-page Application for Certificate of Citizenship, which has a $1,385 government filing fee, and the attorney fees related to the form that range from $1,500 to $10,000. Parents also would need to submit biometrics to U.S. Citizenship and Immigration Services (or another agency), and the parents and baby would likely need to appear in person at a Social Security Administration office. Those actions could entail additional expenses. Costs could differ based on a parent’s details.

NFAP developed the updated estimates with Margaret Stock, an attorney at Cascadia Cross Border Law Group, who has helped many military families with the time-consuming process of documenting that a child born abroad is a U.S. citizen at birth. Stock authored a 2012 NFAP report that explained why changing the Citizenship Clause would be expensive and burdensome for individuals.

Unless the Trump administration intends their new birthright citizenship policy to operate on the “honor system,” which is unlikely, U.S.-born and foreign-born parents will spend considerable time and money if they want the federal government to certify their newborn is a U.S. citizen…

Practical Problems For Americans If The Government Implements The Immigration Order

Trump officials have not explained the new burdens the executive order would create for Americans or the process they intend to impose on new parents if judges ruled the administration’s new birthright citizenship policy constitutional.

Receiving a birth certificate after a child is born would no longer suffice to prove a baby is a U.S. citizen at birth. At a minimum, new parents would need to endure a process like when starting a new job: “Use Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States,” according to U.S. Citizenship and Immigration Services. “All U.S. employers must properly complete Form I-9 for every individual they hire for employment in the United States. On the form, an employee must attest to their employment authorization. The employee must also present their employer with acceptable documents as evidence of identity and employment authorization.”

Margaret Stock believes the process for parents would be more complicated than the current I-9 process companies use to document employment eligibility. “It will have to be much more extensive than the I-9 process,” she said. “Birth certificates showing birth in the United States will no longer prove U.S. citizenship. Someone at the Social Security Administration will need to collect several documents before issuing a Social Security number.”

She said SSA would demand to see a birth certificate with a time stamp on it that shows the time, date and location of birth. The government would also ask for the birth and immigration records of the biological mother and potentially DNA tests to establish the biological father. Officials would also need to see the birth and immigration records of the biological father.

“Only an immigration law expert can do the legal analysis because people’s statuses are a moving target,” according to Stock. “Here’s an example: What if USCIS approves a green card at a Service Center for a pregnant mother a few minutes before (or after) she gives birth? That’s the difference between the baby being a U.S. citizen under the executive order or the baby being an undocumented immigrant.” The Social Security Administration would need an army of expert immigration law adjudicators.

Stock notes that Alaska and Hawaii have federal statutes that do not include the phrase “subject to the jurisdiction.” She believes the executive order may not apply to births in those states.

Today, states, not the federal government, issue birth certificates. SSA relies on state records to issue Social Security numbers to U.S.-born citizens, and the State Department uses those records to issue passports.

“If the fact of someone’s birth within the U.S. is no longer sufficient to prove the person’s claim to U.S. citizenship, all of these bureaucratic systems must be re-tooled,” wrote Stock in the NFAP analysis. “At a minimum, it will require each state to establish a system for verifying claims to U.S. citizenship. More logically, a change to the Citizenship Clause will lead to the creation of a central and authoritative Federal citizenship records system that will register all U.S. citizens—and ultimately, this would likely, in turn, lead to a National Identification card.”

The Trump administration’s effort to end birthright citizenship would add deadweight costs to the economy and financially harm people least likely to possess spare resources. It would also likely create a two-tier caste society with a child’s success in life determined by whether they were born a U.S. citizen at birth.

Margaret Stock said changing birthright citizenship should only appeal to individuals who have not considered the cost and implications of verifying the immigration and citizenship status of every parent of every child born in America.

Source: Trump Immigration Order Could Cost Americans $3,000 Per Baby

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USA Immigration ‘gold card’: What is it, and how could it impact our immigration system? 

2025/03/15 Leave a comment

Of note:

The Bush Institute is a proponent of increasing legal immigration pathways to the U.S., including raising or eliminating per-country caps on green cards. Will the gold card help? 

While the devil is in the details, right now it seems as if the gold card could be a new legal pathway for potential immigrants. But it could also make it harder to qualify for the existing EB-5 program, making a current legal pathway more difficult.  

There are two major policy issues with this proposal. First, while investment and job creation are great, this program doesn’t bring in the workers the U.S. economy needs to fill the open jobs it already has. Even if you assume that a company would pay a high fee to keep, attract, or retain a foreign worker, that’s not a sustainable model to fill the nearly 8 million open jobs in the U.S. The current EB-5 program doesn’t either. Job creation is a wonderful policy goal, but we still need millions of workers to fill open positions.  

Second, similar visa programs around the world have been criticized for being easy targets for corrupt individuals looking to buy their way into countries. Any investor visa program, whether the proposed gold card or the current EB-5, will need to have appropriate vetting and safeguards built in to protect against this possibility.  

Source: Immigration ‘gold card’: What is it, and how could it impact our immigration system?

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Trump administration asks Supreme Court to partly allow birthright citizenship restrictions

2025/03/14 Leave a comment

Will see if SCOTUS accepts application first or decides to shut it down immediately (SCOTUS has accepted application):

The Trump administration is asking the Supreme Court to allow restrictions on birthright citizenship to partly take effect while legal fights play out.

In emergency applications filed at the high court on Thursday, the administration asked the justices to narrow court orders entered by district judges in Maryland, Massachusetts and Washington that blocked the order President Donald Trump signed shortly after beginning his second term.

The order currently is blocked nationwide. Three federal appeals courts have rejected the administration’s pleas, including one in Massachusetts on Tuesday. 

The order would deny citizenship to those born after Feb. 19 whose parents are in the country illegally. It also forbids U.S. agencies from issuing any document or accepting any state document recognizing citizenship for such children….

Source: Trump administration asks Supreme Court to partly allow birthright citizenship restrictions

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Website sells Canadian birthright for $35K to foreign moms 

2025/03/11 Leave a comment

One of the problems of alternative media and TikTok influencers is their lack of capacity and knowledge.

The number of suspected birth tourists (non-resident self-pay) has been published annually (by me) and the British Columbia data is no longer the highest given the large drop pandemic and post-pandemic of Chinese birth tourists at Richmond General and other British Columbia hospitals (see Birth tourism has doubled since the pandemic lull):

A suspicious website is advertising would-be mothers from around the world the opportunity to have anchor babies in Canada, ensuring their children become naturalized citizens.

The Russian-language website “CanadaMama consulting” is advertising their services at fees ranging up to $35,000 for migrant women interested in baby-tourism. The website promises a “safe birth” and a “life full of opportunities.” 

Potential clients are being lured by the prospect of free education, healthcare, employment opportunities and international travel for their children. The website’s default language is set to Russian, but also has built in English, Ukrainian, Chinese and Spanish translations.  

Canadian TikTok influencer Mario Zelaya was the first to bring attention to the website.

Among the services offered to those interested include property rentals, immigration consultation, visa support, medical service advisory and even newborn photography. 

Akin to airline companies, the website has multiple package options ranging from economy, to optimal to comfort, with additional services such as food delivery, hospital tours, shopping advice and interpretation services offered to those willing to pay extra.

CanadaMama also claims to operate “under contract” and work alongside Canadian hospitals – an unverified claim. 

The company claims to have operated for more than five years, carrying out dozens of successful births

Unconditional birthright citizenship in Canada is attracting many birth tourists, especially in British Columbia–where some hospitals have reported non-citizens making up a quarter of their maternity ward patients.

A Calgary-based obstetrician gynaecologist, Dr. Colin Birch, said in a CBC interview that birth tourism had the biggest impact on cities that had international airports, with trends slowing down after air travel was shut down during the pandemic. …

Source: Website sells Canadian birthright for $35K to foreign moms

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LoP – Canadian Citizenship: Practice and Policy

2025/02/22 Leave a comment

Good comprehensive review by the Library of Parliament of legislative and policy issues along with related history. Lots of familiar references to declining rates of citizenship, “lost Canadians” and birth tourism. Executive Summary below:

Canadian citizenship can be obtained through birth on Canadian soil, by descent through birth or adoption outside of Canada to a Canadian citizen, or through naturalization (the process by which citizenship is obtained by a foreign national). Requirements related to citizenship are laid out in the Citizenship Act, as well as in the Citizenship Regulations and Citizenship Regulations, No. 2.

Responsibility for implementing the Citizenship Act lies with the Minister of Immigration, Refugees and Citizenship, who is supported by Immigration, Refugees and Citizenship Canada (IRCC) in managing the citizenship application process. The Citizenship Commission – an administrative body under IRCC that is made up of citizenship judges – also plays an important role, with duties including assessing citizenship applications to ensure they meet certain requirements under the Act and administering the Oath or Affirmation of Citizenship.

To become a Canadian citizen through naturalization, an individual must first obtain permanent residency in Canada and then apply for citizenship after meeting residency and other requirements. Applicants between 18 and 54 years of age must also complete a written test based on the official citizenship study guide (Discover Canada: The Rights and Responsibilities of Citizenship) and attend an interview to test their abilities in English or French and to discuss their application. Successful applicants attend a citizenship ceremony and take the Oath or Affirmation of Citizenship, through which they swear or affirm their allegiance to the King of Canada.

Loss of citizenship can occur if it is revoked (for example, due to citizenship being acquired or retained through false representation) or it can be renounced voluntarily (for example, if an individual chooses to become a citizen of a country that does not allow dual citizenship).

Several issues are currently at the forefront of discourse on citizenship policy. For example, census data show that the rate of citizenship among recent immigrants to Canada declined between 2006 and 2021. The citizenship rate varies for different groups, with contributing factors including income level, education level and country of origin.

Another key issue is that of “lost Canadians,” which refers to individuals who were born before the 1977 Citizenship Act came into force and who should have been Canadian citizens under that Act but were deprived of Canadian citizenship because of outdated or obsolete provisions in the Canadian Citizenship Act of 1947. Many of the problems associated with “lost Canadians” have been addressed through amendments made to the Citizenship Act since 1977. Those whose cases are not covered by legislative amendments may be granted citizenship on a case-by-case basis at the minister’s discretion. Following a December 2023 Ontario court ruling, the federal government introduced Bill C‑71, An Act to amend the Citizenship Act, to address “lost Canadians” issues that remain following previous legislative amendments. This bill died on the Order Paper on 6 January 2025 when the 1st session of the 44th Parliament was prorogued, but the Court’s order is scheduled to come into effect on 19 March 2025.

Finally, the concept of birth tourism refers to the practice by foreign nationals of coming to Canada to give birth for the sole purpose of securing Canadian citizenship for their child. While data suggest an increase in non-resident births in the past two decades, it is difficult to determine how many non-resident births are cases of birth tourism. A federal initiative linking health and immigration data has shed further light on the topic….

Source: Canadian Citizenship: Practice and Policy

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Todd: Should birthright citizenship, banned in most countries but not Canada, be a human right?

2025/02/18 Leave a comment

More on birth tourism, based on some of my analysis:

“Birth tourism” is on the rise again in Canada.

In the past year, 5,219 babies were born in Canada to travelling foreign nationals.

In B.C., 102 non-resident births were at Richmond General Hospital; 99 were at Surrey Memorial; 97 were at Vancouver’s St. Paul’s Hospital; and another 85 were at Children’s Hospital, according to Andrew Griffith, a former senior director in Canada’s immigration department who is now an immigration analyst.

At the same time that Griffith was releasing data showing non-resident births are returning to 2019 levels in an article published in Policy Options last month, entrepreneurs in Richmond said there has been an uptick in inquiries from women in China and other parts of East Asia who want to have their babies in Canada now that President Donald Trump aims to end birthright citizenship in the U.S.

The ethical debate over birthright citizenship, also known as jus soli (right of the soil), is coming to a head as Democratic U.S. states challenge Trump’s initiative and non-resident births rise again in Canada with the easing of COVID-19 restrictions.

Data from the Canadian Institute for Health Information shows the percentage of non-resident births in Canada fell from 1.6 per cent of total births in 2019-20 to 0.7 per cent in 2020-22. It rebounded to 1.5 per cent in 2023-24.

A majority of countries forbid birthright citizenship, including virtually every country in Europe, Asia and Africa. It’s permitted in only about 33 nations.

Even though 160 years ago the U.S. enshrined the 14th Amendment to protect the constitutional rights of those born on its soil, particularly former slaves, Griffith said Canada’s laws on birthright citizenship could be more easily changed than in the U.S.

While most countries mandate that a child’s citizenship depends on the passport held by the parents, Canadian academics argue that birthright citizenship should be a “global human right.”

Today, one of the most common rebuttals to such a stand is that babies who receive citizenship only because they were born on Canadian territory are jumping the country’s immigration queue, which others must go through to qualify to become permanent residents and access universal education, health care and social services.

Two Canadian scholars who have obtained federal government grants to research birth tourism insist it must be protected in the name of “reproductive autonomy.” They say those who oppose it are “demonizing” and “criminalizing” non-resident pregnant people.

University of Carleton law professor Megan Gaucher believes critics of birthright citizenship are engaging in “settler-colonial” thinking that reflects “long-standing racist ideas.”

Ottawa’s Gaucher co-wrote an article on the subject with Lindsay Larios, an assistant professor of social work at the University of Manitoba who has obtained a federal grant to do collaborative research on birthright citizenship with B.C.’s Migrant Workers Centre.

Gaucher and Larios maintain attempts to portray birth tourists “as queue jumpers and citizenship fraudsters ignores the real-life obstacles they encounter within the health-care system and the Canadian immigration system.”

Larios argues that opponents who say offspring shouldn’t get citizenship because of their birth parent’s “precarious” immigration status are ignoring what she calls “reproductive justice.”

Opposition to the position set out by Gaucher and Larios has come from politicians, and medical and immigration professionals.

Rather than being disadvantaged, Griffith said, most women who engage in birth tourism come to North America with enough wealth to pay hundreds of thousands of dollars for travel, accommodation (including in so-called “birth hotels”), and hospital deliveries.

The Society of Obstetricians and Gynaecologists of Canada has said birth tourism needs further investigation. And Dr. Jon Barrett, head of obstetrics at McMaster University in Hamilton, has written that Canadian hospitals should have “absolutely zero tolerance” for it.

Doctors “should unite in a firm stand against birth tourism,” Barrett said, arguing it stresses Canada’s health-care system and puts pregnant foreign nationals at risk of being “fleeced by unethical individuals.”

An Angus Reid Institute poll found that in 2019, when Richmond Hospital was the epicentre of Canada’s birth tourism industry, that two-of-three Canadians believed “a child born to parents who are in this country on tourist visas should not be granted Canadian citizenship.”

Births to non-residents now make up 6.9 per cent of all deliveries at Richmond Hospital, which is down from 24 per cent before the pandemic. Despite this year’s jump in inquiries from people seeking to have babies in Canada because of Trump’s threat, Griffith believes the overall decline over the last few years at Richmond Hospital is owed largely to China restricting its citizens’ travel.

There is no data on whether international students in B.C. have given birth in hospitals here. International students in this province can join the Medical Services Plan by paying $75 a month. In Ontario, said Griffith, some non-resident mothers who have paid for hospital deliveries could be foreign students as that province doesn’t allow them to receive subsidized health care.

In light of a lack of government oversight of birth tourism, Griffith said there is need for more research, including like one study from Calgary. Four-of-five non-resident mothers who delivered babies in that city said their primary motivation was to give their newborn Canadian citizenship. The largest group, one-of-four, was from Nigeria.

Given the ethical issues at stake, Griffith suggests Canada, whose citizenship rules aren’t bound by a Constitution like in the U.S., take a responsible middle way in regard to birthright citizenship.

To reduce the chances of exploitation, he recommends Canada follow the lead of Australia, which allows a baby born on its soil to receive citizenship only if at least one of the child’s parents already has that status.

Source: Should birthright citizenship, banned in most countries but not Canada, be a human right?

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Barnett: Trump Might Have a Case on Birthright Citizenship, Somin: Birthright Citizenship – A Response to Barnett and Wurman

2025/02/17 Leave a comment

These two articles given a sense of the different legal arguments (think it is still a stretch to justify a change without an amendment).

Starting with those who believe there is a case:

…Which brings us to the children of people who are present in the United States illegally. Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?

Clearly, the parents are not enemies in the sense of an invading army, but they did not come in amity. They gave no obedience or allegiance to the country when they entered — one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws. Such persons can even be summarily removed from the country without judicial procedures of the sort that would protect citizens. If the allegiance-for-protection view informed the original meaning of the text, then they and their children are therefore not under the protection or “subject to the jurisdiction” of the nation in the relevant sense.

The executive order’s exclusion of children born to mothers who are “lawful but temporary” residents is a more complicated question not addressed here. And whether Congress ought to grant naturalized citizenship to children born to those illegally present in the United States is a policy issue distinct from whether the 14th Amendment has already done so. The Supreme Court has, in a footnote, presumed that the 14th Amendment’s jurisdictional phrase applied equally to people who are here illegally, but the issue was neither briefed nor argued in that case; nor was it material to its outcome.

When they finally consider this question, the justices will find that the case for Mr. Trump’s order is stronger than his critics realize.

Randy E. Barnett is a professor of constitutional law at the Georgetown University Law Center and an author of “The Original Meaning of the 14th Amendment: Its Letter and Spirit.” Ilan Wurman is a professor of constitutional law at the University of Minnesota and the author of “The Second Founding: An Introduction to the 14th Amendment.”

Source: Trump Might Have a Case on Birthright Citizenship

Somin’s rebuttal:

In a recent New York Times op ed, legal scholars Randy Barnett and Ilan Wurman offer a partial defense of President Trump’s executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. The Citizenship Clause of the Fourteenth Amendment grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” The standard view of this provision is that it covers everyone born in the United States that is subject to US law, and thus, as the Supreme Court explained in the 1898 Wong Kim Ark case “includ[es] all children here born of resident aliens, with the exceptions or qualifications… of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.” The Indians “owing direct allegiance to their several tribes” were excluded because Indian nations were distinct sovereigns exempt from many US laws. For this reason, four federal courts have ruled against Trump’s order.

Barnett and Wurman argue that only people born in the United States at a time when their parents have traded “allegiance” for “protection” truly qualify as under the jurisdiction of the United States. They contend that illegal migrants haven’t made any such compact with the US, and therefore don’t qualify.

Barnett and Wurman cite an 1862 opinion by Attorney General Edward Bates stating that “The Constitution uses the word ‘citizen’ only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other.” Barnett and Wurman claim the Citizenship Clause is based on a social contract theory under which people enter into a “social compact” with the government, trading allegiance for the protection of the laws.

There are several flaws in Barnett and Wurman’s “allegiance-for-protection” theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren’t part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But  the “subject to the jurisdiction” language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn’t get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn’t qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.

Another problem with their analysis is that they rely almost exclusively on sources interpreting the nature of citizenship before enactment of the Fourteenth Amendment, such as the 1862 Bates opinion. But the whole point of the Citizenship Clause was to expand the range of people eligible for birthright citizenship, to include former slaves. Thus, we should not assume that the Citizenship Clause is limited by previous understandings.

Barnett and Wurman do not consider extensive evidence from the period during and immediately after enactment, of the kind canvassed by scholars such as Michael Ramsey in his detailed 2020 article on this subject. That evidence, as Ramsey explains, strongly supports birthright citizenship for the children of undocumented migrants.

Barnett and Wurman argue that the traditional view cannot explain seeming anomalies, such as “the status of children born to citizens residing within enemy-occupied territory, who appear to have been considered citizens if their parents remained loyal… [a]nd… the status of children born to foreigners on foreign public vessels in U.S. waters, who were not considered citizens.” These aren’t actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).

Finally, it’s important to remember that, as Gabriel Chin and Paul Finkelman have shown, the freed slaves whose children were covered  by the Citizenship Clause included a large population that had entered the US illegally, by virtue of being brought in after the federal government banned the slave trade in 1808. This shows that illegal entry was not considered a barrier to being under US jurisdiction.

Even if valid, the Barnett-Wurman theory only partially justifies Trump’s order. That order excludes not just children of illegal entrants, but those born to migrants who entered legally on temporary visas. But their argument fails with respect to children of the undocumented, as well. At the very least, it is not strong enough to overcome decades of contrary precedent and practice, thereby subjecting hundreds of thousands of innocent children to the trauma of deportation.

Source: Birthright Citizenship – A Response to Barnett and Wurman

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