Chief Justice John Roberts questioned why the Trump administration invoked concerns about birth tourism in their arguments for narrowing the definition of birthright citizenship, asking Wednesday what it has to do with the legal arguments before the Supreme Court.
The question came as the justices heard arguments in Trump v. Barbara, a challenge to President Donald Trump’s 2025 executive order seeking to reestablish birthright citizenship under the 14th Amendment so it would only apply to children born on U.S. soil to at least one U.S. citizen or lawful permanent resident. Solicitor General D. John Sauer was grilled by the justices, who appeared deeply skeptical of the administration’s stance on birthright citizenship, as Trump watched from the public gallery in the courtroom.
Roughly 30 minutes into oral arguments, Roberts brought up concerns the DOJ had highlighted in its brief that “birth tourism” has become a side effect of the current liberal understanding of who is eligible for birthright citizenship. Birth tourism is when foreign nationals travel to the United States solely to give birth to their babies on American soil, which grants their children automatic citizenship, but then return to their home countries.
“Do you have any information about how common that is, or how significant a problem it is?” Roberts asked.
Sauer responded by discussing reports of estimates that more than a million Chinese citizens have come to the U.S. for birth tourism, along with reports that Miami is one of the “hot spots” for Russian nationals to come for birth tourism, among other pieces of supporting evidence. Roberts then asked pointedly if Sauer agrees that those concerns have “no impact on the legal analysis” of whether Trump’s birthright citizenship order is constitutional.
Sauer responded by saying that the government’s long-held understanding of the birthright citizenship provision of the 14th Amendment has led to “implications that could not possibly have been approved by the 19th century framers of this amendment” and has created a “mess.” Roberts conceded that birth tourism was not a problem at the time of the ratification of the 14th Amendment.
Sauer continued his argument by noting that “We’re in a new world now, as Justice [Samuel] Alito pointed out, where 8 billion people are one plane ride away from having a child that is a U.S. citizen.” Roberts sharply responded: “It’s a new world, it’s the same Constitution.”
Supporters of the president’s executive order have frequently pointed to birth tourism as one of the main troubles with the current interpretation of birthright citizenship. Many, including the president himself, noted the national security concerns associated with the ability of foreign nationals to have U.S. citizen children despite having little connection to the country.
Justice Brett Kavanaugh also questioned the relevance of one of the Justice Department’s recurring arguments: that the U.S. is an outlier in the world in terms of how liberal its birthright citizenship law is.
“You’ve mentioned several times the practices of other countries, and that’s obviously — as a policy matter — supports what you’re arguing here,” Kavanaugh said. “But obviously we try to interpret American law with American precedent based on American history. That’s certainly what I try to do, and I think you try to do.
“So why should we be thinking about even though — as a policy matter — I get the point thinking about, ‘Gee, European countries don’t have this, or most other countries, many other countries in the world, don’t have this,’” Kavanaugh said. “I guess, I’m not seeing the relevance as a legal, constitutional interpretive matter, necessarily, although I understand it’s a very good point as a policy matter.”
The skepticism shown by Roberts and Kavanaugh in their questioning highlighted the challenges the Justice Department faced at the Supreme Court on Wednesday. While the justices seemed unpersuaded by the DOJ’s arguments regarding birthright citizenship, they also did not appear completely convinced by the ACLU’s stance, calling on the high court to strike down the executive order and uphold the current legal interpretation of birthright citizenship.
TRUMP ADMINISTRATION FACES TOUGH QUESTIONS ON BIRTHRIGHT CITIZENSHIP AT SUPREME COURT
Since returning to the White House, Trump has had a mixed record at the Supreme Court on the merits docket, winning in last year’s case against universal injunctions but losing earlier this year in the case over his sweeping global tariffs.
The administration is still waiting for a ruling on Trump’s ability to fire independent agency heads in the executive branch and will have arguments later this month in a case over the administration’s bids to end temporary protected status for Haiti and Syria. The Supreme Court is expected to issue a ruling in the birthright citizenship case, along with the other cases, by the end of June, when its term ends.