WOLD: Liberal Lawyers Are Wrong — Trump Can, And Should, End Birthright Citizenship

American citizenship is a priceless and profound gift, but for decades, the U.S. has been giving it away to anyone merely born in this country, without any legal requirement to do so. 

On Inauguration Day, President Trump ordered the United States government to stop issuing automatic citizenship documents — for example, U.S. passports and social security numbers — to children born in the U.S. to illegal aliens or temporary visa-holders. I worked on developing this policy during President Trump’s first term, and I am glad to see the President — with much credit to his close advisor, Stephen Miller — finally able to issue it. This policy is eminently reasonable, legally sound, and long overdue. 

Some, like Berkeley Law Professor and former Bush administration official John Yoo, laud so-called “birthright citizenship” as noble, but in reality, it is a senseless policy that devalues American principles rather than upholding them.

Begin with the absurd results that birthright citizenship causes, like incentivizing “birth tourism.” Wealthy Chinese nationals, for example, regularly travel to the Marianas Islands — a U.S. territory — to give birth to their children, who then receive an American passport. The problem has grown so severe that Chinese nationals now swamp the territory’s one hospital, crowding out local access to bedspace and clinical care. In fact, this year the first “American” baby born in the Marianas Islands was to a thirty-year-old Chinese tourist. The Marianas Islands have long petitioned the federal government to end the policies incentivizing this birth tourism, but to no avail — at least until President Trump’s executive order. 

Birthright citizenship has also created accidental and unwilling U.S. citizens with no attachment to this country. Because U.S. citizens are subject to U.S. taxation wherever they live in the world, foreign nationals who were merely born in the U.S. are subject to U.S. taxation even if they live abroad and lack any other tie with this country. There are thousands of such “accidental Americans” around the world, including hundreds of French who have petitioned their government for help to escape the IRS, and even former British Prime Minister Boris Johnson. Johnson was born in the U.S. but left as a young child, yet he was forced to pay U.S. taxes on the sale of his U.K. home before finally rescinding his U.S. citizenship in 2017. 

The absurdity of birthright citizenship is no laughing matter, however, particularly when combined with American immigration law. In 2022, there were 1.2 million US citizens born to illegal alien parents. Because our immigration law privileges family unification — nearly 64% of Green Cards are issued based on chain migration — birthright citizenship has incentivized illegal aliens to give birth in the U.S. and use their citizen “anchor baby” to secure lawful immigration status for other family members.

With such obvious shortcomings, it is no surprise that “birthright citizenship” is an anomaly around the world. Of the 193 United Nations member states, only 31 recognize birthright citizenship, and nearly all of those are small and economically struggling nations who use it to incentivize dual citizenship and potential future investment. No European country grants birthright citizenship: Ireland amended its Constitution and ended the practice in 1994. Australia and Malta also once recognized birthright citizenship, but sensibly adopted policies nearly identical to President Trump’s in the 1980s.  

Proponents of birthright citizenship claim that President Trump cannot change the practice because the Fourteenth Amendment of the U.S. Constitution requires it. Not so. 

The Fourteenth Amendment extends U.S. citizenship to those born in the U.S. and “subject to the jurisdiction thereof.” Illegal aliens and temporary visa holders have explicitly not subjected themselves to the jurisdiction of the United States. They are citizens of other nations and have made no oath or other commitment to be subject to U.S. jurisdiction (like the requirement to pay U.S. taxes even if they eventually leave the country, as U.S. citizens must). Illegal aliens, in fact, have acted against U.S. jurisdictional claims by violating the terms allowed for their entry. And temporary visa holders have sought and been granted only temporary status, which is not the same as being totally subjected to U.S. jurisdiction.

Proponents of birthright citizenship find support for their view in United States v. Wong Kim Ark, an 1898 case in which the Supreme Court held that a Chinese man was a U.S. citizen because he was born in the U.S. to permanent U.S. residents. Make no mistake, Wong Kim Ark was wrongly decided, and the Court today should adopt the view of the Wong Kim Ark dissenters when it is asked to revisit the case. 

But even if Wong Kim Ark stands, President Trump’s interpretation of the Fourteenth Amendment is valid. Under his view, children born in the U.S. to a U.S. citizen or lawful permanent resident parent are entitled to citizenship. Wong Kim Ark does not say otherwise. The Supreme Court’s subsequent decision in Plyler v. Doe does not go further except in non-binding, passing dicta.

Ending birthright citizenship gets to the heart of President Trump’s vision for an American Golden Age. Plenty of people around the world want to come to America for economic opportunity, to develop marketable skills, or contribute to new and emerging industries. Our legal immigration system (flawed as it is) provides opportunities for them to do so. But that does not mean they — or any children they may have during their temporary stay in America — should be citizens. To extend the gift of citizenship to tourists, short-term laborers, or illegal aliens is to empty American citizenship of its traditions and customs — its sacred meaning — and to render America not a cohesive political and historical reality but a mere economic zone, where the rights and duties of citizenship — voting, jury service, the protections of the Bill of Rights — are free for the taking, even unlawfully. 

President Trump deserves credit for his bold and decisive revision to birthright citizenship, which the U.S. has unnecessarily extended for too long. This executive order will be remembered as the first significant move to resuscitate citizenship and rebuild our American home.

Theo Wold was Deputy Assistant for Domestic Policy to President Trump and the Assistant Attorney General overseeing the Office of Legal Policy in the first Trump Administration. Wold was the former Solicitor General of Idaho.