As soon as the Supreme Court ruled that the 14th Amendment makes nearly everyone born in the United States a citizen, Kevin Roberts, the president of the populist-right think tank the Heritage Foundation, decried the decision as “a tremendous betrayal of the republic” and called for a constitutional amendment to overturn it. His former chief of staff, though, said supporters of an amendment are “unserious,” presumably because amendments are so difficult to ratify, and instead urged state governments to disregard the ruling.
As these responses suggest, the decision’s opponents see it as a catastrophe. The dissenting justices worried, less apocalyptically, about the downsides. “The Court’s interpretation preserves a powerful incentive to enter or remain in this country illegally,” wrote Justice Samuel A. Alito Jr. Illegal immigrants can have children who automatically become U.S. citizens, a winning lottery ticket in much of the world. And the children’s citizenship complicates efforts to deport the parents. Justice Brett M. Kavanaugh pointed out that the Americans who wrote and ratified the 14th Amendment had not foreseen “the issue of temporary visitors who give birth in the United States,” also known as birth tourism.
These are real problems. But the U.S. has more promising ways to address them than trying to amend the Constitution, causing a constitutional crisis or waiting for justices to reconsider the decision.
The U.S. has not only historically been able to deter illegal immigration while following the birthright citizenship rule, it’s doing it right now. President Donald Trump’s success in controlling the southern border is proof that he does not need to prevail on birthright citizenship to crack down on illegal immigration. And the government could do much more to shrink the illegal population over time, such as requiring employers to verify the legal status of new hires. It might not even take a new act of Congress for a president to implement this policy.
Nor has birthright citizenship stopped the Trump administration from boasting of its successes in fighting birth tourism. As the Migration Policy Institute notes, “applying for and securing a visa solely for the purpose of garnering U.S. citizenship for a child is both an act of fraud and grounds for inadmissibility.” Sen. John Cornyn (R-Texas), who recently lost his primary, has introduced legislation to stiffen enforcement of laws against the practice. Penalties would be tougher. Removal of those involved in facilitating birth tourism would be expedited. Countries refusing to work with the U.S. on the issue would face restrictions on visas for their residents.
Unlike Kevin Roberts, I don’t think the justices in the majority betrayed the country. Justices on several sides of the case ( the dissenters disagreed among themselves on some issues) made reasonable arguments, as you might expect given that nobody who debated the 14th Amendment in the 19th century was thinking about birth tourism or even illegal immigration. The decision deserves respect. But it doesn’t have to be the final word on the question of what to do about those who evade or exploit the nation’s immigration laws, and it shouldn’t be.
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