The Executive and Judicial Branches have recently weighed in on birthright citizenship. Now it's the Legislative Branch's turn.
The Supreme Court has spoken — for now. President Trump issued two new executive orders in August that will invite new legal challenges. Whether the Court ultimately cements birthright citizenship for illegal aliens or not, Congress has the power to dramatically reduce its consequences now. Lawmakers should permanently secure the border, mandate E-Verify, and eliminate the incentives that encourage illegal immigration. None of those reforms depends on the Court changing its mind.
It's against the law to cross the border illegally or to overstay a visa; birth tourists routinely deceive immigration agents — but five of the nine justices concluded that the authors of the 14th Amendment, willingly or not, enshrined a constitutional guarantee that anyone who successfully games our immigration system — and has a child on U.S. soil — must be rewarded.
This is the gamification of our immigration system.
The Supreme Court's ruling means every illegal entry, visa overstay, and birth tourism visit continues to carry a citizenship multiplier. It also means we have not yet measured the full impact of the Biden border crisis, as every unauthorized migrant released into the interior has an opportunity to gain a U.S.-citizen child who can sponsor the rest of the family when they turn 21. This multiplier effect will apply to any future surges in illegal immigration and birth tourism.
Cartels, smugglers, and birth tourism agencies exploit that multiplier for their own gain. They sell their clients on 13 years of free education and access to college tuition assistance. They profit at American taxpayers’ expense.
President Trump is far from the first or only politician to recognize the problem. The late Democratic Senate Majority Leader Harry Reid, before reversing himself, once declared that no sane country would offer such a reward. Indeed, of the more than 30 nations with advanced economies around the world, only two continue to grant automatic citizenship to the children of illegal aliens and tourists: Canada and the United States.
Most developed countries abandoned unconditional birthright citizenship decades ago because modern travel and large-scale migration fundamentally changed the policy's effects. In the early 20th century, annual tourism numbered in the hundreds of thousands and voyages took weeks. Today, roughly 70 million visitors come to America each year, often after only a few hours on an airplane.
Roberts' majority opinion doesn't address the modern implications of birthright citizenship, which Roberts traces back to English common law. England, by the way, limited birthright citizenship in 1983.
Catching up with the rest of the modern world will be more challenging now, but it's not impossible. Congress has many solutions right in front of it.
Justice Kavanaugh specifically ruled against the president's Executive Order, but told Congress what it could do to “pass constitutional muster.” He provided a simple path forward for Congress: pass a statute creating new exceptions "for children born to foreign citizens unlawfully or temporarily in the country."
Congress should press the issue by passing a bill limiting birthright citizenship and putting it on the president's desk to test the Kavanaugh theory. Yet, the most practical and immediate way to stop birth tourists, cartels, and smugglers from gaming the system is to keep the prize out of their hands.
The solution: Make the president’s border policies permanent. Demand that illegal entrants be detained or deported. Punish those who overstay their visa. Mandate E-Verify and stop sanctuary policies.
The House Judiciary Committee recently advanced H.R. 9773, the Permanent Trump Secure Border Act. It is the successor to H.R. 2 from the last Congress, and it would be the strongest border security bill passed into law in a generation. It would end catch-and-release, return parole to a case-by-case basis, disqualify migrants who pass through safe countries from asylum, increase penalties for visa overstays, and allow the safe repatriation of unaccompanied alien children from noncontiguous countries, closing the loophole that cartels have exploited to smuggle minors.
Beyond the border, the illegal job market is what makes staying possible — long enough to work, long enough to settle, long enough to cash in on the birthright reward. E-Verify takes the illegal jobs away. It remains the single most effective tool for reducing the illegal population already here. And if you aren't here illegally, you can't exploit the loophole.
And for those who remain under the radar, Congress must penalize the states and local jurisdictions who provide them sanctuary. We have learned that sanctuary policies encourage illegal immigration while risking national security and public safety. Congress should hold local elected leaders accountable for assisting those who will exploit the birthright policy.
The fight for a modern birthright citizenship policy isn't over. It has simply moved to the branch that was supposed to be doing this work all along.
Jeremy Beck is Co-President of NumbersUSA.