The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Responding to the "Birth Tourism" Objection to Birthright Citizenship
Not only is the problem overblown. It isn't really a problem at all. It's also irrelevant to the constitutional question addressed by the Supreme Court.
Critics of the Supreme Court's birthright citizenship decision in Trump v. Barbara often cite the issue of "birth tourism" - situations where a pregnant woman comes to the US to give birth for the specific purpose of ensuring that the resulting child will be a US citizen. The issue comes up often in political discourse, and is a major focus of Justice Samuel Alito's dissent in the case. As a legal matter, birth tourism should have no effect on the resolution of the constitutional issue before the Court: the meaning of the Citizenship Clause of the Fourteenth Amendment. As a matter of morality and policy, the problem is not just overblown, but actually not a problem at all.
The Citizenship Clause grants citizenship to "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof." As Chief Justice John Roberts explains in his majority opinion for the Court, this covers almost everyone born in the US, excluding only groups that are largely exempt from sanctions for violating the law, such as children of diplomats who have diplomatic immunity. That includes the groups Trump sought to exclude from birthright citizenship in his January 2025 executive order: children of undocumented immigrants and those here on temporary visas. Children of "birth tourists" are covered in the same way. Unless their parents are diplomats or the like, they too are subject to US law.
In my previous post about the Supreme Court decision, I summarize the reasons why the majority's approach is correct, and the various dissenters wrong. Among other things, the dissent arguments all run afoul of the main purpose of the Citizenship Clause: ensuring citizenship rights for freed slaves, their children, and other Blacks.
Moreover, the scope of this phenomenon is very limited. PolitiFact recently compiled estimates of the number of children born to "birth tourists" on US soil. Most estimates fall within a range of about 5000 to 10,000 per year. The immigration-restrictionist Center for Immigration Studies gives a much higher estimate of 26,000 per year. CIS's data analyses are often badly flawed and misleading. But even this higher figure is only about 10% of the over 250,000 children per year who would lose birthright citizenship status if Trump's executive order had been upheld by the Court. Preventing this relatively small number of birth tourism cases isn't worth consigning hundreds of thousands of people to deportation back to what for most would be a lifetime of poverty and oppression. It also isn't worth the damage to the US economy and society.
Moreover, birth tourism isn't actually a bad thing at all. It's a positive good. Presumably, "birth tourist" parents want their children to be born US citizens so they could live a life of greater freedom and prosperity than would be possible in the parents' countries of origin. That's obviously a good outcome for the children and their families. And it's good for the US economy and society, as well, because native-born US citizens benefit from the enormous economic and social contributions of immigrants. Indeed, immigration restrictions undermine the economic freedom and prosperity of native-born US citizens more than any other government policy.
There is no good reason to think that children of "birth tourists" will, on average, be any worse citizens than children of other types of migrants or - for that matter - native-born citizens. Relative to natives, immigrants contribute disproportionately to scientific innovation and entrepreneurship, have lower crime rates, and greatly reduce government budget deficits (they, on average, contribute far more to the public fisc than they take out). The same is almost certainly true of children of birth tourists.
Restrictionists tend to assume that immigration and citizenship are zero-sum games. If an immigrant comes and (worse still) becomes a citizen, that somehow takes something away from natives. But in the vast majority of cases, the exact opposite is true. Immigrants and natives can progress and prosper together.
Children of birth tourists are unlikely to be exceptions to these general trends. The main difference between them and other migrants is that their parents carefully planned to be in the US at just the right time. Such foresight and planning is a positive trait, not a negative one.
To be sure, some such children might turn out bad, growing up to be criminals, terrorists, and so on. But the same is true of some proportion of virtually any group of many thousands of people. There is no reason to categorically exclude all members of such groups based on that possibility. Under that approach, the US should have barred the ancestors of virtually all current US citizens. After all, most of those ancestors were migrants who were members of groups that included some criminals and other malefactors.
There is also the possibility that the parents might leave the United States and never return, taking the kids with them. But if so, the children may live out their lives elsewhere, and their being US citizens would not cause anyone any harm (albeit also creating little benefit). If they then return to the US as adults many years later, there is no reason to think that would, on average, be harmful either. For example, there is no evidence that children of birth tourists have become significant sources of espionage or threats to national security.
Perhaps some of these adult returnees will be bad voters. But if so, they are highly unlikely to be a large enough group to influence electoral outcomes. Besides, it's unlikely they would be much worse than the the electorate we already have, which suffers from widespread ignorance and bias.
To the extent that some small percentage of immigrants or children thereof are dangerous, the best approach is not to exclude large numbers of innocent people in order to forestall a few criminals, but to shift resources away from enforcing immigration restrictions to ordinary law enforcement. That is likely to do far more to reduce crime overall, while posing less danger to civil liberties.
Ultimately, there is no coherent objection to birth tourism that isn't an objection to immigration more generally. If you want to massively reduce immigration overall, then you will likely want to reduce birth tourism, too (even though it's only a tiny fraction of the total). But there is no reason to single out the latter.
I am not an unequivocal supporter of birthright citizenship. Elsewhere, I have explained why it's a "second-best policy." It would be much better if people had a right to freedom of movement regardless of where they happened to be born. That would also eliminate the need for "birth tourism." But birth tourism is not a valid reason to replace birthright citizenship with something more exclusionary, rather than less so.
In sum, birth right tourism is legally irrelevant to the constitutional issue that the Supreme Court decided. And it's a relatively minor phenomenon that isn't a problem at all. It would be good to have more of it!
UPDATE: I have made a few minor additions to this post.
