Prologue
Interesting article and even more interesting comments on the 14th Amendment "birthright citizenship" issue.The Trump v. Barbara case to be heard April 1, 2026 will probe which individuals born in the USA are not U.S. citizens at birth.www.nytimes.com/2026/03/30/u…
— John Richardson (@expatriationlaw.bsky.social) 2026-03-31T09:07:48.861Z
On Wednesday April 1, 2026 the Supreme Court of the United States will hear the “Trump v. Barbara” case. This issue is whether birth on U.S. soil is sufficient to confer U.S. citizenship regardless of the legal status of the parents.
You can listen to the live argument on the Supreme Court site. It all takes place on Wednesday April 1, 2026 at 10:00 a.m. Eastern time. I will post the audio on this blog.
Birth Tourism – What is it? Is it a legitimate concern?
A 2022 U.S. Government report on “birth tourism” included:
I. Executive Summary
Birth tourism refers to expecting mothers traveling to the United States to obtain U.S. citizenship for their children. These tourists often cite the superior educational and professional opportunities available in the United States as their justification for making such a trip. Obtaining U.S. citizenship for their children is a hedged bet—a rainy day fund for a better life.
The benefits of U.S. citizenship require little explanation and should be cherished by all who are presented with such a unique privilege. Birth tourists
surely understand the benefits, but fail to comprehend the privilege of U.S. citizenship. Birth tourism is problematic because it short circuits and demeans the U.S. naturalization process. U.S. citizenship is not a backup plan.VII. Conclusion
The Committee’s investigation demonstrates the prevalence of birth tourism in the United States and how it demeans the naturalization process by
monetizing the privilege of U.S. citizenship. The State Department and CBP should work together to better understand the breadth of birth tourism in the
United States. Congress should also clarify the Immigration and Nationality Act to exclude birth tourism as a permissible basis for temporary travel to the
United States.
PDF here:
2022.12.20- Final_Birth Tourism Report
Clearly and understandably the U.S. Government is not happy with mothers coming to the United States for the sole purpose of giving birth to a U.S. citizen child.
Introduction – The Trump Executive Order – PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP
On January 20, 2025, President Trump released his executive order which (in practical effect) ended the principle that all people born in the United States are automatically U.S. citizens. Those intended to be excluded are described in the following excerpt from the Executive Order:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
In Summary, it appears that the Trump administration will argue that “birthright citizenship” is not available to children born on U.S. soil when the mother who is neither a U.S. citizen nor a permanent resident AND the father is neither a U.S. citizen nor permanent resident.
In other words, the “birth tourism” industry would have to adapt to ensure that the father of the child is either a U.S. citizen or permanent resident of the United States (Green Card holder). Parents who are on student visas or people on other temporary visas would no longer have to worry that their children, born in the United States, would be U.S. citizens. (Many of the “Accidental Americans” would rejoice!)
Interestingly I found a post I wrote on January 26, 2025 about January 20, 2025 Trump Executive Order:
The Legal Basis Of “Birthright Citizenship” – The 14th Amendment of the U.S. Constitution
Section 1.
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.
How should this be interpreted? What is the meaning (if any) of the words “subject to the jurisdiction therefof”?
Should the language be interpreted to mean that birth on U.S. soil is sufficient to Confer U.S. citizenship?
Should the words “and subject to the jurisdiction thereof” be interpreted to mean that there are some people born on U.S. soil who are not automatically U.S. citizens? If so, who should those “excluded” be? To date, the children of “some” foreign diplomats born on U.S. soil are NOT considered to be U.S. citizens at birth.
Where should the line be drawn? There is much disagreement on where that line should be.
Should the children born in the United States to a mother who is illegally in the United States be citizens?
Should the children born in the United States to a mother who is legally in the United States as a visitor be citizens?
Should the children born in the United States to a mother legally in the United States who is neither a U.S. citizen not permanent resident be citizens?
Should the marital status of the mother matter? Should the citizenship or immigration status of the father matter?
Although there has long been a presumption that birth on U.S. soil is sufficient to confer U.S. citizenship, there is significant academic commentary to the contrary. Further evidence is here.
Let Chris Geidner of “Law Dork” be our guide
Chris Geidner – AKA – “Law Dork” is the author of a fantastic Subsack where he covers U.S. Supreme Court cases. As might be expected he has written an interesting article where he discusses the 128 year old Supreme Court decision in United States v. Wong Kim Ark.
https://www.lawdork.com/p/birthright-citizenship-arguments-preview
Mr. Geidner’s article included:
Saturday was the 128th anniversary of the Supreme Court’s decision in United States v. Wong Kim Ark, where — at the time of the racist, xenophobic Chinese Exclusion Act — the Supreme Court nonetheless held that the Fourteenth Amendment prevented the governmental effort to bar Kim Wong Ark from returning to the country. That was so because he was a U.S. citizen because he was born in the U.S. — notwithstanding his parents having been citizens of China.
In a lengthy opinion by then-justice Horace Gray, he concluded for the 6-2 court:
The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject” ….
The opinion has stood for 128 years — based as it was on a long history that preceded it — and has threaded itself into and throughout American law and the fundamental understanding of what it means to be an American.
Mr Geidner’s article includes a lengthy discussion of the United States v. Wong Kim Ark case. Although the Court ruled that Wong Kim Ark was a U.S. citizen because he was born in the United States, the decision seemed to be largely based on the fact that his parents were domiciled in the United States a the time he was born. A wonderful discussion of the case is found in Amanda Frosts’s book “You Are Not American“.
My prediction (which is worth nothing)
The “Birth Tourism” industry will continue ONLY to the extent that the biological father of the child is a U.S. citizen or permanent resident. Yes, there are some circumstances where U.S. citizenship or Green Card status is a benefit! Male Americans abroad can become “registered sperm donors”. (Perhaps a side business to offset the costs of U.S. tax compliance abroad.)
How to listen to the argument in real time
You can listen to the live argument on the Supreme Court site. It all takes place on Wednesday April 1, 2026 at 10:00 a.m. Eastern time.
John Richardson – Follow me at X.com/expatriationlaw
Appendix A – The full text of the January 25, 2025 Executive Order
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment states: “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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.
But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.
(c) Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.
Sec. 3. Enforcement. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security shall take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order, and that no officers, employees, or agents of their respective departments and agencies act, or forbear from acting, in any manner inconsistent with this order.
(b) The heads of all executive departments and agencies shall issue public guidance within 30 days of the date of this order regarding this order’s implementation with respect to their operations and activities.
Sec. 4. Definitions. As used in this order:
(a) “Mother” means the immediate female biological progenitor.
(b) “Father” means the immediate male biological progenitor.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,
January 20, 2025.
If the parents are not residents of the United States, at least one parent must be an American citizen to pass on citizenship.