Supreme Court protected birthright citizenship. Here's what it didn't do

The Supreme Court last week struck down an executive order in Trump v. Barbara, over whether a president can redefine birthright citizenship by executive action. The answer was no.

Chief Justice John Roberts, writing for the majority, held that children born on American soil to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States, and are thus citizens at birth under the Fourteenth Amendment. 

The decision was 6 to 3, but only five justices, Roberts, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson, grounded the ruling in the Constitution itself. Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented outright. 

Justice Brett Kavanaugh supplied the sixth vote on narrower ground, writing that “the Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute” — Title 8, Chapter 12, § 1401(a). Congress has independently guaranteed birthright citizenship by statute, and an executive order cannot override an act of Congress. 

One camp seized on Kavanaugh, that Congress could “amend” §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship. 

The other camp concluded that only a constitutional amendment would work. 

Both camps are staring at locked doors. A statute redefining citizenship would head directly into the constitutional holding that five sitting justices just issued. An amendment requires two-thirds of Congress and 38 states, a generational project. 

A third door is wide open, and almost no one is walking through it. The court protected birthright; it did not protect the industry built around it. Those businesses are real, organized, and highly profitable. 

When the State Department amended its visa regulations in 2020, it described the birth tourism industry as “rife with criminal activity, including international criminal schemes,” and warned that foreign governments and other entities “may seek to benefit directly or indirectly” from the practice in ways that threaten national security.

The dissenting justices saw the picture from different perspectives. 

Alito, in a 39-page solo dissent, rejected the idea that the Fourteenth Amendment confers citizenship “on virtually everyone who happens to be born in this country, including the children of ‘birth tourists’, women who come here solely for the purpose of giving birth to a child and then promptly return home.” The ruling, he warned, “preserves a powerful incentive to enter or remain in this country illegally.” 

Thomas, writing the 91-page principal dissent, argued that the citizenship clause “guaranteed citizenship to persons born and domiciled in the United States regardless of their race” and never recognized “a constitutional right to citizenship for the children of all foreign birth tourists and illegal aliens.” 

Gorsuch wrote, “children born to temporary visitors in this country, whether here lawfully or unlawfully, are not citizens,” and because the order was lawful at least to that extent, the challenge to it should have failed. He lost that argument. 

All three dissenting opinions aim at the transaction, not the child. No Supreme Court holding confers constitutional protection on the syndicates that sell the package. 

According to reports cited by the State Department, more than 500 companies operate in China to facilitate birth tourism, with packages ranging from $20,000 to $100,000. 

USA Happy Baby Inc. operated a maternity house in Rancho Cucamonga, California, charging clients up to $100,000. Its operators coached pregnant women to lie on visa applications, to conceal pregnancies with loose clothing, and even select less scrutinized customs lines. The operator received a 41-month federal sentence in the first criminal prosecution of the industry. It is a trafficking-style enterprise, defrauding the federal government as a business model. 

Federal reviews have documented facilitators structuring their operations so that American hospitals absorb enormous unpaid maternity bills — costs that ultimately migrate onto taxpayers who never agreed to underwrite anyone’s citizenship package. The White House put it plainly: unrestrained birth tourism carries a tremendous cost to taxpayers and threatens national security.

Here is a way forward: No gamble in court, no decades of ratification battles. Collapse the business model on three fronts. 

First: demand. The 2020 rule already makes birth tourism an impermissible basis for a tourist visa. Yet the State Department’s own Foreign Affairs Manual handcuffs consular officers by barring them from asking an applicant about pregnancy without a specific reason and from requiring any evidence. 2020 is a rule the government forbids itself from enforcing. Fix the manual. 

Second: supply. Treat the syndicates the way we treat transnational trafficking networks, because that is what they are. The Justice Department, following the Supreme Court ruling, directed prosecutors to prioritize birth tourism cases using visa fraud, wire fraud, identity theft, and international money laundering, in coordination with the Department of Homeland Security’s Birth Tourism Initiative. 

We must make their facilitation unprofitable. How? Financial forensics — to include asset forfeiture, beginning with their U.S. facilities. No money, no business. Plus, we make expansion difficult via pressure on promotional platforms and payment channels. Shut them down before anyone even arrives. 

Third: value. The child’s citizenship is beyond reach — the commercial value surrounding that citizenship is not. Congress controls cost recovery for unpaid medical debt, sponsorship rules, and the derivative benefits that make a $100,000 birth package currently look like a smart investment. Change those rules and the “$100,000 Souvenir” becomes worthless. The Constitution leaves that ground entirely to lawmakers; they should claim it. 

The Constitution now protects every child born on our soil; nothing protects the industry that sells birthright as a product. American citizenship was never meant to be a line item in a Shanghai brochure, and after Barbara, the path to ending that trade does not run through the court at all, it runs through enforcement. None of this requires relitigating what five justices just determined. It requires discipline in D.C. to stop pounding on locked doors for political gain, and lead through the bipartisan open one.

Jacqueline Cartier is a corporate and legislative strategist focused on communications, crisis leadership, public trust, and emerging technologies that shape human behavior and decision-making. Follow her on LinkedIn.