Memo 07.28.2026 5 minutes

With Birthright Citizenship Upheld, Now What?

President Trump Attends Supreme Court Arguments Involving His Birthright Citizenship Order

A new playbook to curb its abuses.

In Trump v. Barbara, the Supreme Court held that the 14th Amendment guarantees birthright citizenship regardless of a child’s parents’ nationality—and that the president cannot change that by executive order.

So what now?

If U.S. citizenship means more than mere birth on our “magic dirt,” we must find other ways to protect it.

One possible fix is for Congress to pass a law clarifying that under the 14th Amendment, “subject to the jurisdiction thereof” excludes any child whose parents hold citizenship in, and thus loyalty to, another country.

But this route is fraught with problems.

First, Congress rarely passes laws that require 60 votes in the Senate, the threshold for all legislation except spending bills. The Senate could eliminate the filibuster for this purpose. But what goes around comes around, and Republicans could soon see Democrats use it for D.C. statehood, immigration amnesty, and other left-wing dreams.

Second, the law would be challenged and, with the current Supreme Court, likely ruled unconstitutional. A future Court with new justices might see otherwise, but that’s a long game.

An even longer-shot fix would be a constitutional amendment to clarify that citizenship by birth in the U.S. can be conferred only on children who have at least one parent who is a U.S. citizen. This is the norm in most of the world, but achieving it here would take years.

In the meantime, there are other things we can do.

Abuse of birthright citizenship comes in three main varieties. The smallest is via international surrogacy, whereby foreigners can purchase eggs and sperm, rent a womb, and thereby produce offspring that are U.S. citizens. We can end this morally repulsive practice by passing laws to ban it.

The second abuse is birth tourism. Women worldwide exploit this crooked industry to confer all the benefits of U.S. citizenship on their children with none of the duties and costs. Women from hostile states like China, Iran, and Russia do so even when they or their families belong to the ruling regime or its security services.

The last type of abuse of birthright citizenship is through anchor babies. This is when poor or middle-class women from Mexico or Central America, or even from countries much farther afield like Ghana and Pakistan, come here to give birth and take advantage of welfare programs intended for indigent American mothers.

When I was a consular officer, I refused many mothers who wanted to return to the U.S. with their U.S. citizen children, born while they were on tourist visas. In nearly every case, either the mother claimed to have no records, or the bills showed that the hospital or a welfare program picked up the tab.

The southern border is mostly sealed, but some will always make it in illegally over land. Air travel is easier to control because people need visas.

The simplest thing to do is to maximize the power of AI and big data. Consular officers conduct hundreds of interviews in a day. In a minute or two, they must assess an applicant’s purpose of travel, financial status, and intent to return home.

AI could review millions of previous cases, decisions, and outcomes in seconds and assess risk. In general terms, rates of visa abuse among applicants from the same country with similar demographic, economic, and geographic characteristics can be weighed. In specific terms, each applicant’s travel pattern, family connections, finances, and other personal factors can be examined.

High-risk applicants can be denied visas. Any visas issued to women of childbearing age could be limited to one year. Visa holders could also be required to post a significant bond, which would be fully refundable upon their return home. If they used U.S. public funds for childbirth or other healthcare, or applied for welfare benefits, that money could be deducted from the bond.

That would not be a perfect system. Some will consider the bond a cost of doing business. But even with a child who is an American citizen, they would still be deportable for having lied about their intended purpose for visiting. They could also be blocked from re-entering.

Yes, their American citizen child could eventually petition for them to come back, but not for many years, and not without some hoops to jump through, and the risk of visa ineligibilities that can’t be waived.

The U.S. has created too inviting an environment for illegal immigrants. Open-border advocates from the Democratic Socialists of America to the Cato Institute like to say that immigrants aren’t allowed to take welfare, but that’s simply wrong.

First, many illegal immigrants are exempt from the 1996 law that is supposed to bar them from welfare for five years. This includes Cubans and Haitians, refugees, people approved for asylum, and people paroled into the country for more than a year, including at least 1.5 million aliens paroled by Joe Biden. They all qualify for some federal and state benefits on arrival.

Second, illegal immigrant parents can tap into a range of benefits on behalf of their American citizen children, from health care to food stamps.

Third, California, Illinois, Minnesota, New York, Oregon, and Washington allow illegal immigrants into their state health programs, which are supported with federal dollars.

The math is becoming clear all over the developed world: on average, illegal immigrants will take more from the treasury over their lifetimes than they will contribute. Many legal immigrants are also a net drain. The State Department is contemplating requiring bonds of $100,000 or more for immigrant visa recipients who are at high risk of becoming net takers.

But those favoring open borders and mass migration don’t care about the math. If they are far-left, they long for the entire capitalist system to fail. Mass migration of indigents will only hasten that day. If they are libertarians, they imagine a world of open borders but no welfare programs. This is politically inconceivable.

Birthright citizenship is the law for now. The best response is to mitigate its effects by reducing the ease and incentives for foreigners with no roots, ties, or loyalty to the United States to come here and exploit it.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

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