Editor’s note: This article has been updated throughout.
President Donald Trump on Thursday signed executive orders aimed at limiting the citizenship rights of children born within the United States to foreign tourists, those classified as “alien enemies,” and foreign diplomatic staff, and suggested ending birthright citizenship in U.S. territories if Congress changes the law.
Trump called the Supreme Court’s late June ruling upholding the constitutional right to birthright citizenship a “very, very unfortunate decision.” “They’ve taken birthright citizenship and they’ve made a joke out of it,” Trump said, referring to tourists who travel to the country to give birth. Details of the executive orders were first reported by Axios.
“We’re actually the only country of size, I think just about the only country period, that does birthright citizenship. I thought we were going to win it at the Supreme Court. Unfortunately, we had a bad decision, very unfair decision,” he continued, adding: “Our country suffers because of it, and we’re ending it a different way.”
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More than 30 countries grant people born within their borders automatic citizenship regardless of their parents’ citizenship or immigration status. Most are located in the Americas, including Canada and Mexico. Another 30 countries offer conditional birthright citizenship if certain conditions are met.
To Trump’s right in the Oval Office at the signing ceremony stood Stephen Miller, a top adviser to the president and the architect of many of his administration’s far-right immigration policies.
Trump and fellow Republican immigration hardliners have been exploring alternative routes to limit citizenship rights for children born within the United States to foreign tourists and other foreign nationals in the wake of the Supreme Court’s ruling in late June.
Markwayne Mullin, the head of Trump’s Department of Homeland Security, suggested on “Fox & Friends” earlier this summer that this effort could include banning pregnant foreigners from traveling to the United States.
They “have a child who may move back to China, raise the person in a communist regime — even though they’re a citizen of the United States — and they come back over here, and in some cases, they go to universities, stealing intellectual property. It’s absolutely been a national security issue,” Mullin continued.
Mullin added that there was a “long conversation at the White House” immediately after the Supreme Court ruled in the birthright citizenship case. He met with Trump, Miller and Tom Homan, the president’s “border czar.”
Miller, when asked by Fox News later that day about whether the administration should ban travel by pregnant foreigners, said that the country needed to think “very carefully” about who is allowed to deliver a baby here.
Here’s what to know about birth-related tourism in the United States, how the Trump administration has moved to limit birthright citizenship and what was in the president’s executive orders.
This story will be updated.
What was in the executive orders?
As reported by Axios, one executive order states that children born to parents who “expressly and deceptively” enter the country for the sole purpose of having a child will not have birthright citizenship and seeks to limit the use of surrogates for this purpose. Another states that children born to the foreign staff of diplomats or to parents classified as alien enemies or terrorists. The administration believes this is an “expansion” of babies currently not eligible for birthright citizenship because the 14th Amendment does not grant it to the children born to foreign ambassadors or those in invading armies.
There have long been proposals in Congress that sought to implement this more expansive reading of the 14th Amendment, which the Supreme Court has repeatedly upheld as widely bestowing birthright citizenship to children regardless of their parent’s political views or criminal activities.
Axios also reported that the executive order also states that birthright citizenship will no longer be granted to individuals born in U.S. territories — but acknowledges that Congress would have to change the law for this to happen.
Is birth-related tourism common?
The federal government does not keep an official tally of how many foreign tourists traveled to the United States to give birth so their babies could be U.S. citizens. The Center for Immigration Studies, which advocates for significantly reducing immigration, estimated that in 2020 there were between 20,000 and 26,000 possible instances of babies born in the United States to foreign tourists. There were 3.6 million babies born in the country that year; the potential cases the conservative advocacy group identified account for less than 1 percent of overall births. The nonpartisan Migration Policy Institute has described birth tourism as a “rare practice.”
Has the Trump administration tried to crack down on what it calls “birth tourism” before?
The State Department announced earlier this month that the U.S. Embassy in West Africa had “uncovered a sophisticated birth tourism network of more than 100 foreign nationals using fraudulent documents and visa ‘fixers’ to get themselves visas to get U.S. citizenship for their children.”
“Under President Trump, the State Department is defending the integrity of U.S. citizenship by ending illegal birth tourism schemes,” the agency said.
The State Department had, in the early months of Trump’s second term, issued a travel-related announcement that U.S. consular officers would deny the tourist visas of any traveler determined to be coming to the United States for the primary purpose of giving birth so their child would gain citizenship.
In April, shortly after the Supreme Court heard oral arguments in the birthright citizenship case — and the justices seemed skeptical that Trump had the authority to issue an executive order ending the practice — the news agency Reuters reported that Immigration and Customs Enforcement (ICE) ordered its investigators to also focus on a new “Birth Tourism Initiative.”
Traveling to the United States on a temporary tourist visa for the primary purpose of giving birth is currently prohibited. Though customs officers are limited in how they can question visa applicants about pregnancy, federal immigration enforcement agencies have wide latitude to determine how policies are implemented.
In late 2014, for example, the United States and China entered into a decade-long reciprocal visa agreement. Based on this agreement, consular officers were directed not to deny visa applicants from China, even if their primary purpose for travel was to give birth and obtain U.S. citizenship for their child — they were to be treated like any other applicant for a medical visa.
In early 2020, the State Department amended its policies to “establish that travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa.” It also heightened the standards to qualify for a medical visa, including demonstrating the means to pay for treatment.
How did birth-related tourism factor into the birthright citizenship case before the Supreme Court?
Limiting the ability of tourists and other immigrants to obtain U.S. citizenship for their children has been a longtime priority of the Republican Party’s conservative flank — and it factored into the legal arguments the Trump administration made in Trump v. Barbara, the birthright citizenship case.
Solicitor General D. John Sauer told the justices that birthright citizenship has “spawned a sprawling industry of birth tourism” and that tourists from “hostile nations have flocked to give birth in the United States.” Chief Justice John Roberts, a conservative who is often a swing vote on the divided court, asked Sauer for more information about the prevalence of birth-related tourism. Sauer responded: “No one knows for sure.”
Roberts wrote the opinion for the 6-3 majority that upheld the constitutional right to birthright citizenship. Fellow conservative Justice Amy Coney Barrett joined him with the court’s three liberal justices: Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Conservative Justice Brett Kavanaugh agreed with the outcome of the case but on different legal grounds.
Justice Samuel Alito wrote about alleged “birth tourists” in his dissenting opinion, describing them as “women who come here solely for the purpose of giving birth to a child and then promptly return home.”
How might the Trump administration enforce further restrictions on the travel of pregnant foreign tourists?
It is not yet clear how the Trump administration might further direct immigration enforcement agencies to crack down on pregnant foreign tourists entering the country.
Thus far, much of the public discussion from members of the administration has focused on limiting the travel of pregnant foreign nationals who are visibly in the later stages of pregnancy. Mullin said on Fox & Friends that traveling late during a pregnancy “can also cause a health issue for the mother.” (It can also be dangerous at earlier stages.) He did not offer any evidence that the administration’s immigration-related investigations showed that birth-related tourism was happening in the final weeks of pregnancy.
Correction: An earlier version of this story misstated the justice who agreed in part with the decision.
