Senators probe birthright citizenship as Supreme Court gears up to tackle Trump executive order

WASHINGTON (CN) — As the Supreme Court prepares to examine President Donald Trump’s policy clamping down on birthright citizenship, Senate Republicans pointed Tuesday to so-called “birth tourism” as one reason why the White House needed to redefine who is considered a U.S. citizen.

The justices next month will hear oral arguments in a case concerning the president’s day-one executive order barring the children of immigrants without legal status or with temporary legal status from claiming citizenship. The White House has positioned its birthright citizenship policy as an integral part of its push to stem illegal immigration.

And the Trump administration has specifically pointed to birth tourism — a practice in which people travel to the U.S. on temporary visas to give birth and grant their children the privileges of citizenship — as a trend that has degraded the value of being an American citizen.

Now, just weeks before the Supreme Court is set to take up the president’s birthright citizenship policy, Republicans on the Senate Judiciary Committee argued Tuesday that granting citizen status to children born in the U.S. to parents who are here illegally or who participated in birth tourism was a “dramatic departure” from how other countries understand citizenship.

“Under that interpretation, citizenship is devoid of connection to the American people,” said Missouri Senator Eric Schmitt, chairman of the Judiciary Committee’s constitutional issues subpanel. “Instead, regardless of if your parents are tourists, foreign students or are illegally in the country, if you’re born here, you are automatically a citizen in equal standing with the American people.”

Schmitt backed the Trump administration’s argument that the Constitution’s 14th Amendment, which grants citizenship to all people “born or naturalized in the United States and subject to the jurisdiction thereof,” implies that people in the country illegally or temporarily are subject to the “jurisdiction” of a foreign country and not the U.S.

“That phrase reflects allegiance,” the Missouri senator said. “It reflects political authority. It reflects belonging to the United States.”

Charles Cooper, chairman and founding partner of boutique law firm Cooper & Kirk, testified to Judiciary Committee lawmakers that the Supreme Court had erred in its ruling in the landmark 1898 case U.S. v. Wong Kim Ark, in which the justices held that the 14th Amendment’s citizenship clause meant people born in the country were required to obey U.S. law.

“The dissenting opinion in Wong Kim Ark was right,” said Cooper, who claimed Congress had intended for the amendment’s phrase “subject to the jurisdiction thereof” to exclude people who may be subject to “any foreign power.”

“The bottom line … is this: American-born children of foreign visitors and illegal aliens are not subject to the jurisdiction of the United States and are therefore not entitled to birthright citizenship,” he told the committee.

Republican lawmakers and witnesses also claimed foreign countries, particularly China, were exploiting the current interpretation of birthright citizenship rights in what they called a “profound” national security risk.

Peter Schweizer, president of the Government Accountability Institute, told the Judiciary Committee that birth tourism business was conducted at an “industrial” scale in China. He testified that companies charge as much as $100,000 to transport Chinese nationals to the U.S. or American territories to give birth and then arrange for the newborn child’s transport back to China once they are old enough.

“In China alone, we have identified more than 1,000 birth tourism companies that are almost exclusively focused on the United States,” said Schweizer, author of “The Invisible Coup,” in which he argued that immigration is being leveraged against the U.S. as a “political strategy” by foreign governments.

Schweizer also claimed the government does not track the activities of birth tourism companies because there is no centralized database of the nationalities of people who give birth in the U.S. But he said the Chinese government estimates as many as 50,000 Chinese citizens a year have children in the U.S. or in American territories such as Saipan.

“These are not political dissidents,” he said. “These are military officers, people from the Ministry of Propaganda, people that are high-ranking officials in the Chinese Communist Party.”

However, Judiciary Committee Democrats and at least one witness were skeptical about Schweizer’s claims — and broadly rejected arguments that the government needed to reshape citizenship law.

Amanda Frost, a professor and director of the immigration, migration and human rights program at the University of Virginia School of Law, pointed out that Schweizer’s own book acknowledged “no one really knows” how many people in the U.S. are birth tourists and estimated that less than 1% of children born here or in American territories were products of such a practice.

Frost added that existing federal law makes it illegal to enter the U.S. on a tourist visa for the purpose of giving birth.

“If we do have a problem with birth tourism — and I don’t think there’s any evidence that we do — but if we do, then the solution is to enforce the law on the books and not to deprive American families of the citizenship of their children born on U.S. soil,” she said.

And the law professor also argued that allowing Trump’s “blatantly unconstitutional” birthright citizenship order to remain on the books would immediately strip citizenship from roughly 250,000 children every year, possibly subjecting them to deportation on “day one of their lives.” The policy would also render more than 3 million children born every year “presumptive noncitizens,” forcing their parents to prove citizenship and ancestry in the U.S.

Illinois Senator Dick Durbin, meanwhile, pressed Schweizer on what he said was the witness’s lack of specific figures about the number of Chinese nationals who have used birth tourism to exploit U.S. citizenship rights. He pointed out that Schweizer’s written testimony estimated anywhere from 750,000 to more than 1 million Chinese nationals hold U.S. citizenship.

“Professor Frost tells us there’s a violation of federal law here, if you’re using this practice in coming into the United States,” Durbin said to Schweizer. “So give me a number. How many prosecutions under President Trump, either in his first term or this term, have there been for violations of this practice, birth tourism?”

Schweizer replied that there has been “some prosecution” of companies engaged in birth tourism, though he said he was not sure of a specific number — contending again that he was largely relying on Chinese figures.

The witness also told Durbin that the Trump administration had instructed U.S. Customs and Border Patrol to set aside people at ports of entry who “appear to be pregnant” and question them further.

“You’re making some pretty wild claims here about a million Chinese nationals who are going to vote absentee in the next election or do something that may be suspicious,” the Illinois Democrat said. “You ought to come back to us with some data that backs that up.”

Frost, for her part, told Durbin that she had submitted Freedom of Information Act requests to the Trump administration about enforcement of the law barring people from entering the U.S. to give birth. “It’s been over a year, I’ve appealed, and I’ve gotten no response,” she said.

Birthright citizenship has long been considered settled jurisprudence since the Supreme Court’s ruling in Wong Kim Ark, but Trump’s policy has the justices set to take the constitutional right up once more. Oral arguments in the case are scheduled for April 1.

Ahead of that date, the U.S. Conference of Catholic Bishops told the Supreme Court in an amicus brief last month that the White House’s birthright citizenship order was “outrageous” and “immoral” and argued it would undermine the moral pillars of American society.

“As Catholics, our faith compels us to protest laws that deny the dignity of the human person and harm innocent children, particularly when such laws resurrect the very injustices the 14th Amendment was enacted to repudiate,” they wrote.

The Supreme Court last summer refused to directly weigh in on a challenge to Trump’s birthright citizenship order, instead striking down universal injunctions used by lower courts to halt enforcement of his policy. The move allowed the White House to continue limiting birthright citizenship without an affirmative ruling from the high court on the subject.

Lower courts, however, have so far largely blocked the Trump administration from denying citizenship to the children of immigrants.

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