Can Trump Stop the ‘Baby Factories’?

Even before taking office, Trump’s influence is being felt on birthright citizenship. ICE, taking advantage of President Joe Biden’s absence as a leader, saw a California man sentenced to over three years in prison for running a business called USA Happy Baby that helped pregnant Chinese women travel to the United States to deliver babies who would automatically get American citizenship.

USA Happy Baby helped several hundred women travel from China to give birth to American citizen babies. The “tourists” paid as much as $40,000 for services, including apartment rentals during their stays in Southern California, and worked with overseas entities that coached women on what to say during visa interviews and upon arriving in U.S. airports, advising them among other things to wear loose clothing to hide their pregnancies.

“For tens of thousands of dollars each, defendant helped his numerous customers deceive U.S. authorities and buy U.S. citizenship for their children,” federal prosecutors wrote in court papers. USA Happy Baby worked with a multi-million-dollar adjacent business called You Win USA, which further coached pregnant Chinese women on how to get into the United States. Another business, Star Baby Care, boasted of bringing over 8,000 Chinese women to the U.S. to give birth. The businesses operate openly, and advertise freely in Chinese-language media both here and abroad. It is big business. Yet many of the women, lacking U.S. health insurance, gave birth as public charges using public funds.

Such businesses have long operated in California, Florida, and other states and have catered to people not only from China, but also from Russia, Nigeria, Korea, and elsewhere. It isn’t illegal to visit the United States while pregnant, but lying to consular and immigration officials about the reason for travel when the primary purpose is to give birth in the U.S. is. Birth travel is driven by birthright citizenship, and Donald Trump wants to do away with both of them.

“I see this as a grave national security concern and vulnerability,” said Mark Zito, assistant special agent-in-charge of Immigration and Customs Enforcement. “Are some of them doing it for security because the United States is more stable? Absolutely. But will those governments take advantage of this? Yes, they will.”

So what is birthright citizenship? A child born in the United States (with limited exceptions) to a foreign citizen, legally or illegally present in the U.S., is by virtue of the 14th Amendment (the so-called Citizenship Clause) automatically and forever an American citizen. The child need only prove he was born in the U.S. At the age of 21 the child can begin filing green card paperwork for his extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.

The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford, which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld that a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong is understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.

Doing away with birthright citizenship is another of Trump’s proclaimed Day One initiatives. In a campaign post, Trump wrote, “On Day One, President Trump will sign an Executive Order to stop federal agencies from granting automatic U.S. citizenship to the children of illegal aliens. It will explain the clear meaning of the 14th Amendment, that U.S. Citizenship extends only to those both born in and ‘subject to the jurisdiction’ of the United States.”

The Trump campaign also said it would order on Day One the Social Security Administration to refuse Social Security numbers to newborn children without proof of the parents’ immigration status. Trump will issue the same order to the State Department, which issues U.S. passports. This would not require any action from Congress and because it would not grant/take away citizenship per se, would not directly violate the 14th Amendment in Trump’s interpretation.

Currently, a U.S. birth certificate is all that is needed to obtain a Social Security number and passport in most cases. The State Department considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department’s Foreign Affairs Manual takes the position Wong settled this issue. This means the Trump E.O. would likely be challenged immediately in lower courts and the case would be ripe for the Supreme Court to use to revisit Wong if they wished to. The Court could rule classes of foreigners on U.S. soil such as tourists (included already are children of foreign diplomats) are not subject to the jurisdiction of the United States and therefore their children, if born in this country, are not entitled to citizenship. The Court could also side with long precedent and refuse to even hear the case.

Another option for Trump would be to re-issue and this time enforce an Executive Order from Trump 1.0. Under this EO, visitors can be denied temporary tourist visas if it’s found the “primary purpose” of their travel is to obtain citizenship for a child by giving birth in the United States. The rule does not currently apply to the 39 countries in the Visa Waiver Program, including Korea, and the State Department in implementing the EO forbids its visa officers from even asking in most cases if an applicant is pregnant, making the order near-impossible to enforce. A revised EO, which refines “tourism” to exclude planning to give birth in the U.S., extends the exclusion to the Visa Waiver Program, applies equally to ICE at the Ports of Entry, and prohibits the State Department from defanging the law in its implementing guidance, could go a long way toward at least slowing the flood of pregnant visitors to the U.S.

Trump could also order ICE to more aggressively pursue the baby facilitators now actively at work in the U.S., places like USA Happy Baby and You Win USA. ICE could productively look into how the organizations move money internationally, likely to find something akin to money laundering and tax evasion, even if the immigration laws themselves are too weak to hold up in court on a large scale.

What Trump cannot do is wipe away the 14th Amendment, and it is possible his other efforts to slow birth tourism will ultimately fail on this point. Then-Speaker of the House Paul Ryan in 2018 said, “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration.”