Does birthright citizenship still make sense?

Unanchoring Babies

By Greg Ganske, Kass News

Friday February 21, 2025

“Our Borders have overflowed with illegal immigrants placing tremendous burdens on our criminal justice system, school, and social programs. The Immigration and Naturalization Service needs the ability to step up enforcement. Our federal wallet is stretched to the limit by illegal aliens getting welfare, food stamps, medical care and other benefits often without paying any taxes. Safeguards like welfare and free medical care are in place to boost Americans in need of short-term assistance. These programs were not meant to entice freeloaders and scam artists from around the world. Even worse, Americans have seen heinous crimes committed by individuals who are here illegally.”

Is this Donald Trump’s executive order statement on ordering the United States government to stop issuing automatic citizenship documents like US passports and social security numbers to children born in the US when neither parent is a US citizen? Nope. It is from the speech that Democrat Senate Minority Whip Harry Reid gave on the floor of the United States Senate in introducing his Immigration Stabilization Act of 2003. Sen. Reid’s bill clarified that birth right citizenship of illegal aliens was proscribed.

Anchor baby (some think this is pejorative) is a term used to refer to a child born to non-citizen parents in a country that has birthright citizenship which helps the parents and other family members gain legal residency and avoid deportation. Once the child is of legal age in the United States, he or she can then sponsor legal entry for family members, hence the term anchor baby. In Canada a similar term is “passport baby.”

Not surprisingly, a federal judge in Seattle quickly issued a temporary injunction against Trump’s executive order calling it “blatantly unconstitutional.”

Illegal immigrant welfare is hugely costly especially in border states such as California. During 2015-2016 illegal immigrant families received nearly $1.3 billion in LA County welfare costs and these expenses have ballooned since. The high rates of welfare use among illegal immigrants reflects low incomes coupled with a large share who have US born children who are eligible for all welfare programs from birth.

More than half of all illegal immigrant households have one or more anchor children. A dozen states offer Medicaid to all low-income children. These benefits also include Temporary Assistance for Needy Families (TANF), the Women, Infants, and Children (WIC) nutrition programs, free or subsidized lunch and breakfast programs. $1.4 billion a year is due to food stamps.

The EITC, Earned Income Tax Credit, is available to illegals with anchor babies to the tune of $1,000 per child. Illegal family members are entitled to emergency Medicaid, prenatal care, and some cancer care and long-term care. All illegals are entitled to free public education.

Birth tourism isn’t just abused by the poor. Wealthy Chinese nationals regularly travel to the West Coast or a US possession like the Marianas Islands to give birth to their children who then receive an American passport. Chinese nationals are now swamping the territory’s one hospital and crowding out local access to bed space and clinical care. The first “American” baby born this year in the Marianas Islands was to a thirty-year old Chinese tourist. In 2022 there were 1.2 million US citizens born to illegal alien parents. 64% of Green Cards are issued based on chain migration aided by anchor babies.

As the public becomes more aware of the abuses of birthright citizenship, it increasingly favors its elimination. A recent Emerson poll shows that a plurality of Americans “Strongly support” changing the federal law to ensure illegal migrants cannot get citizenship for their newly born children. 30% of registered voters “strongly favor” the rule change and an additional 15 % “somewhat support” the change. 27.5% “strongly oppose” the change and 9% “somewhat oppose the change.” 69% of Republicans support ending birthright citizenship as do 25% of Democrats and 38% of independents.

Even liberal talk show host Bill Maher opines, “Rich Chinese people come here just—they fly over here and then they have the baby here just so they can be an American citizen. It [birthright citizenship] has been bastardized. You can’t say this is all for the good.”

This is both a political and a constitutional issue and will end up in the Supreme Court sooner or later. As evidenced by Senator Reid’s bill, this has been a bipartisan matter of concern for a long time, though more so on the conservative side. How the Supreme Court decides this case will depend on its interpretation of a 6-word phrase and a couple commas in the 14th Amendment.

The citizenship clause of the 14th Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United Sates and of the State wherein they reside.” The purpose of the 14th Amendment was to overturn the 1857 Dred Scott case and ensure that Blacks were full-fledged citizens. This meant constitutionalizing the 1866 Civil Rights Act.

The legal point in dispute as it relates to anchor babies is the meaning to the Amendment’s writers of the modifying phrase “subject to the jurisdiction thereof” and of subsequent Supreme Court decisions on citizenship. The pertinent phrase in the Civil Rights Act is “All persons born in the United States and not subject to any foreign power are hereby declared to be citizens of the United States” The phrase “not subject to any foreign power” would seem to clearly exclude children of illegal immigrants. The 14th amendment substituted the phrase “and subject to the jurisdiction thereof.”

In the historical record there is no record of the authors of both the 1866 Act and the 14th Amendment, Sen. Lyman Trumbell of Illinois and Jacob Howard of Ohio, intending to change the original meaning from the Civil Rights Act. In fact both stated that “” subject to the jurisdiction of the United States” means “not owing allegiance to anybody else.” This would seem to clearly exclude birthright citizenship for the children of illegal aliens.

Congressman James F. Wilson of Iowa, the Chairman of the House Judiciary Committee during debates leading to the Civil Right Act, said “. . .children born on our territory to temporary sojourners might not be citizens.” Senator George Williams added that merely “being born within the geographical limits of the United States” wasn’t sufficient to be “fully and completely subject to the jurisdiction of the United States.”

As I read the historical record it seems the men who drafted, debated, and passed the 14th amendment had a more robust notion of “jurisdiction” than today’s legal scholars who assume that being subject to the jurisdiction of the US government means simply being obligated to obey its laws. For exhaustive legal and historical analysis, I recommend the reviews on birthright citizenship in the Texas Review of Law and Politics by Graglia, in 2009, and Swearer, in 2020.

Some legal scholars contend that the few Supreme Court cases dealing with this issue confirm birthright citizenship for children of illegals. In 1898 the court held that Wong Kim Ark, a man born in the US to legal Chinese-immigrant parents, was a legal citizen. The court did not directly address the question if its decision applied to children of illegal immigrants. A dissent pointed out that there is a difference between “territorial” jurisdiction and “complete” or “political” jurisdiction, and that the 14th Amendment refers to the latter.

The Supreme Court would not have to overrule Ark to uphold Congress’ authority to redefine the limits of birthright citizenship as it relates to the “subject to the jurisdiction” phrase. Congress changed the definition of citizenship when it enacted the Indian Citizenship Act of 1924 that declared indigenous persons born within the United States are US citizens. Prior to that, the 14th amendment was taken to mean members of the various tribes were citizens of their tribal nations and not US citizens unless they paid US taxes.

With a majority of strict constructionists on the Supreme Court it is possible it will support Trump’s executive order. It would be still better if Congress would limit birthright citizenship by legislation. The US is an outlier on this issue of citizenship. While some allow it, most of the world’s countries do not allow anyone just born in their countries to be citizens.

I agree with Senator Reid–birth right citizenship and its resulting anchor babies act too much as an incentive for illegal immigration.

It’s time to unanchor these babies