Donald Trump has spent years railing at the Constitution’s principle of birthright citizenship and has sought to unilaterally redefine who gets to be an American.
But after the Supreme Court struck down his unconstitutional executive order to block automatic citizenship to the children of certain immigrant parents, the president seemed to believe he still has a shot in Congress — and then he thanked China’s president.
“I would like to congratulate President Xi, and the Great Country of China, on their massive Birthright Citizenship WIN!” Trump wrote on Truth Social Tuesday.
Trump and administration officials have repeatedly claimed that thousands of pregnant women travel to the U.S. within the final days of their pregnancy every year to ensure their newborn child gets American citizenship, including potentially tens of thousands of Chinese nationals.
The president also claimed that the Supreme Court’s decision can “easily” be addressed through legislation in Congress that echoes his executive order, which legal experts say is a dead end.
“No long and unwieldy Constitutional Amendment is necessary!” Trump wrote. “Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!”
Conservative Supreme Court justices also suggested that Trump still has a pathway in Congress.
“Congress can and should address their situation,” Justice Samuel Alito wrote in his dissent.
The 14th amendment “dictates who must be a citizen, but it does not address who may be a citizen by Act of Congress,” he argued.
Justice Brett Kavanaugh — one of Trump’s three appointees to the high court — joined the majority’s decision to strike down Trump’s executive order, but he said Congress could amend federal law or enact new legislation “establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”
That probably isn’t going to happen, and it will likely face the same constitutional roadblocks at the center of Trump’s birthright citizenship case, according to lawyers who challenged Trump’s executive order.
Legislation would need support from at least seven Democrats to reach a 60-vote threshold needed to overcome the filibuster, and a constitutional amendment would require a two-thirds majority vote from both chambers.
“That is not a serious concern,” Taryn Wilgus Null, senior director of Democracy Defenders Fund, told reporters Tuesday.
“He doesn’t understand how this works or how the constitution works,” she said. “The Supreme Court held that the executive order violates the Constitution … The only way the Constitution can be changed is a Constitutional amendment.”
Cody Wofsy, deputy director of the ACLU’s Immigrant’s Rights Project, said there is “no space for equivocation” in the majority’s decision.
“At the end of the day, a dissenting opinion is a dissenting opinion,” he said. “The majority of the court has reaffirmed what the 14th Amendment says.”
Still, Republican lawmakers are giving it a shot. Senator Rand Paul introduced a constitutional amendment in April that would rewrite the 14th Amendment to limit citizenship eligibility to only certain newborns.
Trump and administration officials have repeatedly claimed that thousands of pregnant women travel to the U.S. within the final days of their pregnancy every year to ensure their newborn child gets American citizenship.
In 2020, the Trump administration gave the State Department discretion to deny tourism visas to an applicant who is believed to “travel for this primary purpose.”
Under U.S. law, travelers are prohibited from “obtaining a visa for the primary purpose of obtaining U.S. citizenship for a child by giving birth” in the U.S.
Still, administration officials contend there is a massive industry sending pregnant women to the U.S., despite the immense hurdles pregnant travelers face when trying to get into the country. Getting a visa to enter the U.S. “is difficult for everyone, not just pregnant women,” according to Aarti Kohli, executive director of the Asian Law Caucus.
During April’s oral arguments in the birthright citizenship case, the government’s top attorney claimed as many as 1.5 million Chinese nationals with U.S. citizenship obtained legal status through a “birth tourism” industry.
He said billions of people are “one plane ride away from having a child who’s a U.S. citizen.”
That same month, Trump’s border czar Tom Homan claimed “hundreds of thousands of Chinese nationals and Russian nationals” have U.S. citizen children through “birth tourism,” which he called a “significant national security threat.”
In the weeks leading up to Tuesday’s decision, Trump raged against “Chinese billionaires” he claimed were taking advantage of a constitutional amendment that he said was intended to protect “babies of slaves.”
The Department of Justice responded to the Supreme Court’s decision with a threat to target “birth tourism schemes.”
“Birth tourism schemes exploit our immigration laws and often violate our criminal laws,” the Justice Department said in a statement .
“The Department of Justice will prioritize the prosecutions of birth tourism schemes across the country,” the department added. “Actors seeking to exploit loopholes to obtain automatic citizenship for their children pose a national security threat and will be brought to justice.”
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