When Birthright Citizenship Goes Wrong

Daniel McCarthy
Mon, 30 Mar 2026 16:59:08 -0700
Opinion

Get ready for the next Roe v. Wade — only this time the Supreme Court decision that threatens to split the country isn't about abortion; it's about "birthright citizenship."

Trump v. Barbara is before the Court this week, and with it comes the very question of who is an American.

On his first day back in office, President Donald Trump signed an executive order clarifying that the children of illegal immigrants or temporary residents aren't American citizens just by virtue of being born on American soil.
Updated: Mon Mar 30, 2026

Get ready for the next Roe v. Wade — only this time the Supreme Court decision that threatens to split the country isn't about abortion; it's about "birthright citizenship."

Trump v. Barbara is before the Court this week, and with it comes the very question of who is an American.

On his first day back in office, President Donald Trump signed an executive order clarifying that the children of illegal immigrants or temporary residents aren't American citizens just by virtue of being born on American soil.

People born here to at least one citizen parent are automatically citizens, and Trump's order recognizes the children of lawful permanent residents as birthright citizens, too.

But that's not enough for those who insist the Constitution's 14th Amendment establishes a radical definition of birthright citizenship:

Since even illegal immigrants are "subject to the jurisdiction" of the federal government while they're in this country, the amendment's language — "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ..." — means their children, too, are American citizens.

There's a string of Supreme Court rulings and federal laws that defenders of that sweeping interpretation cite to back up their claim.

But the bottom line is they think no executive order, or even congressional legislation, can moderate the meaning of birthright citizenship:

If you don't like the most wide-open definition of birthright citizenship, there's nothing you can do about it except try to pass another constitutional amendment.

And of course, with this reading of birthright citizenship rewriting the very composition of America's citizen body, the odds of passing an amendment to restore sanity are tall indeed:

Democrats need the voters manufactured by the anything-goes version of birthright citizenship to stay competitive — and if they can transform the electorate through immigration and birthright citizenship, they hope to lay permanent claim on power.

Yet it's not only domestic political factions that are using the loose construction of birthright citizenship to their advantage. America's opponents abroad are doing so, too.

What could be more useful for an enemy than to have agents with all the "privileges and immunities" of American citizens?

China has exploited the liberal interpretation of "birthright citizenship" to maximum advantage.

Analyzing the results from decades of "birth tourism" — which brings pregnant Chinese women or other foreign nationals to our soil, including territories like our Northern Mariana Islands, for the express purpose of giving birth and acquiring American citizenship for their offspring — Peter Schweizer, in his book "The Invisible Coup: How American Elites and Foreign Powers Use Immigration as a Weapon," estimates "at least 750,000 and possibly as many as 1.5 million Chinese, who are also American citizens by virtue of being born here, are now growing toward adulthood in China."

And birth tourism seems almost quaint compared to a new scheme that Chinese nationals have lately been perfecting: using surrogacy to turn foreign embryos into American citizens.

That's what Guojun Xuan, and his partner Silvia Zhang, were doing with a breeding program that was exposed in Arcadia, California, last year.

Through a surrogacy firm that Xuan ran, the couple had more than two dozen of their own embryos brought to term by American women, not only in California but across the country in Pennsylvania, Virginia and Georgia as well.

Birthright citizenship, as liberals understand it — and as they hope the Supreme Court will uphold it — leads to absurdities, and worse.

It incentivizes and rewards lawbreaking by granting the invaluable prize of American citizenship to the children of people who enter this country in knowing violation of our laws.

It gives foreign powers easy access to America's domestic politics, through the full rights of citizens.

And the liberal approach thwarts American democracy itself, by preventing voters from assigning limits to birthright citizenship through the ordinary channels of representative government — that is, through their choices for president and Congress.

The purpose of the 14th Amendment was to enshrine the rights of black Americans as natural-born citizens, not to grant citizenship to the offspring of non-Americans in this country illegally.

It certainly wasn't written to allow foreign powers to obtain for their own citizens or subjects a useful secondary citizenship as Americans.

Citizens of foreign nations are not naturally subject to the jurisdiction of the United States, though anyone can be temporarily subject to that jurisdiction by breaking the law to come here.

Children are by default subject to the jurisdiction that their parents are subject to — not temporarily, but permanently and in the ordinary course of life.

Trump's executive order made the right distinctions: between permanent residence and temporary status and between citizens and illegal aliens.

Now it's up to the Supreme Court to make the right distinction between radical legal arguments and constitutional common sense.