Trump Faces Limited Options After Birthright Citizenship Ruling: Experts

The Supreme Court struck down President Donald Trump’s executive order attempting to end birthright citizenship on June 30, but he and other GOP lawmakers have vowed to find a way to circumvent the ruling.

Trump and members of Congress indicated there was a path forward in preventing children of illegal immigrants and legal temporary visitors from automatically becoming U.S. citizens at birth.

Experts said the president could pursue a stricter visa process and stronger enforcement to counter birth tourism, a scheme by which foreign nationals use fraudulent documents, coaching services, and visa fixers to get into the United States to give birth.

However, legislative and constitutional changes would be difficult—if not impossible—to achieve, the experts said.

Changing Federal Law

Trump’s Executive Order 14160 focused on a part of that amendment called the citizenship clause, which reads, “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.”

Chief Justice John Roberts wrote the majority opinion for the case, known as Trump v. Barbara, stating that the clause applied to the children of illegal immigrants and legal temporary visitors.

Trump criticized the 6–3 ruling on Truth Social and proposed a different path for achieving his objectives on birthright citizenship.

“The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation,” Trump wrote in his post. “No long and unwieldy Constitutional Amendment is necessary!”

After the decision, Sen. Eric Schmitt (R-Mo.) proposed legislation called the American Citizenship Act, which would amend the decades-old Immigration and Nationality Act (INA).

His proposal would modify the portion of the INA that incorporated the Citizenship Clause’s language and guarantee of citizenship.

It would say, “A person born in the United States and not subject to any foreign power: Provided, That a person born in the United States shall be deemed subject to a foreign power if neither parent of such person is a United States citizen or has been lawfully admitted for permanent residence at the time of such person’s birth.”

Schmitt pointed to Justice Kavanaugh’s concurrence in the June 30 ruling. Kavanaugh rejected the majority’s view of the 14th Amendment but said Trump’s order should nonetheless fall due to the INA.

“Consistent with the Fourteenth Amendment, Congress could amend [the INA] or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country,” he said. “But Congress has not yet done so.”

Schmitt, who also sought a constitutional amendment, saw Kavanaugh’s concurrence as a potential green light for a legislative fix.

Legal, Political Hurdles

Legal experts doubted the legislative approach, pointing to how five of the justices ruled that the 14th Amendment, which trumped federal statutes, ensured citizenship for the children of illegal immigrants and temporary visitors.

Congress could try to change the law, but it would face an uphill battle in courts, John Shu, a constitutional law expert who served in both Bush administrations, told The Epoch Times.

“That’s not going to fly,” Shu said about Congress using the INA to change birthright citizenship.

“Let’s assume that Congress was able to amend the INA to delete birthright citizenship, which is a big assumption,” Shu said. “I don’t think it would survive a constitutional challenge.”

Neama Rahmani, a former federal prosecutor who worked on immigration issues, told The Epoch Times he didn’t believe legislation would work—at least right now. Both he and Advancing American Freedom attorney John Malcolm told The Epoch Times that Republicans’ prospects could change in the future.

If one of the justices in the majority were to die or retire, their replacement could join Kavanaugh and the three dissenting conservative justices to uphold the new law.

“Even though this is a loss, 5–10 years from now, maybe things will actually change,” Rahmani said.

Constitutional Amendment

Outside of changing the statute, Republicans could try to pass a constitutional amendment, but doing so would be nearly impossible, attorneys said.

To approve a new constitutional amendment, Republicans would need a supermajority of Congress and three-fourths of the states to support it.

“There are more than enough Democrat-led states which strongly dislike President Trump such that the three-quarters ratification threshold would not be reached,” Shu told The Epoch Times.

He also said, “Congress is so divided right now, they can’t even agree on what should be in the House and Senate Dining Room menus.”

Carrie Severino, a former clerk for Justice Clarence Thomas, similarly told The Epoch Times that a constitutional amendment, rather than legislation, “would be the correct direction” if Republicans wanted to change the policy.

Cracking Down on Birth Tourism

In the meantime, the Trump administration could use federal law to combat birth tourism.

“[Homeland Security and the State Department] certainly have the power and the authority to impose more careful scrutiny on visas or at ports of entry on pregnant women who are coming from certain countries that have a history of birthright tourism,” Shu said.

Chris Hajec, an attorney with the right-leaning Federation for American Immigration Reform, told The Epoch Times that the government should focus on boosting enforcement.

“The government should better enforce our immigration laws, so that we don’t have millions of foreign nationals living here illegally,” he said.

Following the Supreme Court’s decision, the DOJ said it would begin vigorously prosecuting birth tourism schemes, which “exploit our immigration laws and often violate our criminal laws.”

The department also released a memorandum from Assistant Attorney General Colin McDonald to DOJ employees on prosecuting birth tourism schemes.

“Regrettably, the American system is exploited each year by thousands of foreigners who travel to the United States under false pretenses to give birth and secure citizenship for their child,” the memorandum read.

He directed all U.S. attorneys and the DOJ Criminal Division to work with the Department of Homeland Security to prioritize prosecuting birth tourism schemes.

“We will bring illegal birth tourism to an end,” he said.

Experts who spoke to The Epoch Times discussed similar steps the Trump administration could take, like tightening visa programs and reducing the “panoply of welfare benefits” immigrants could apply for, as Shu put it.

Shu said federal agencies could also partner with state and local prosecutors in addition to U.S. attorneys. Furthermore, the Trump administration could deport any individual participating in birth tourism as opposed to imprisoning them in the United States.

This would set a strong precedent and deterrent for others who might attempt a similar scheme, experts said.

“[The Trump administration] should be very strict about birth tourism, and if a pregnant lady shows up from China, or from any other problematic nation, she and her minders ought to get a lot of questions at the customs or passport line,” Shu said.

The Epoch Times contacted the White House for comment and was referred to Trump’s comments on Truth Social.