The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Children

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.

Ilya Somin | 7.2.2026 6:10 PM

Illustration: Lex Villena; Romrodinka

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........

© Reason.com