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Trump’s New Rules About “Birth Tourism” Are Really an Attack on Birthright Citizenship

The nativists are letting their nativism show.
January 28, 2020
Trump’s New Rules About “Birth Tourism” Are Really an Attack on Birthright Citizenship
Senior Advisor to the president Stephen Miller is seen during an immigration event with US President Donald Trump in the South Court Auditorium, next to the White House, on June 22, 2018 in Washington, DC. (Photo by MANDEL NGAN / AFP) (Photo credit should read MANDEL NGAN/AFP via Getty Images)

The State Department has issued new rules that will bar some pregnant women from entering the United States on temporary visas. You can view this development in one of two ways: Either it is a subtle attempt to throw meat to Trump’s nativist base during impeachment, or it is the first official step in an effort to roll back the birthright citizenship which is guaranteed in the U.S. Constitution.

The announcement, which received little attention from the mainstream press, is aimed at preventing what is sometimes referred to as “birth tourism,” a practice which both anti-population and anti-immigration groups claim involves wealthy women, primarily from places like China and India, flying to the United States in order to give birth to American citizen babies, who later will be used to sponsor their parents and other family members for U.S. visas.

And indeed there is some truth to this story: Some companies have been caught promoting such services, complete with expensive hotel stays and obstetric services provided.

But once you pull back a bit, it’s clear that the new guidelines have little to do with actual “birth tourism.” For one thing, the scale of the industry is tiny. (Even the anti-immigration Center for Immigration Studies estimates the total number at 33,000 births annually. The CDC puts the number closer to 10,000. Whichever statistic you prefer, we’re talking about a drop in the ocean.)

For another, to the extent that this is a problem, it’s correctable by pursuing better enforcement against the companies which are trying to exploit birthright citizenship for profit.

Instead, the new rules would not only prevent women who are coming for no purpose other than to give birth to a new U.S. citizen but will also restrict others who have legitimate plans to study or work in the United States—or whose spouses do. It will also affect pregnant women who may be visiting family members stateside. Or who are seeking specialized medical treatment unavailable in their native countries.

The rules would allow officials to bar any pregnant woman unless they can convince the officer issuing a visa that her purpose is not to give birth while in the United States. If the officer denies the visa application, there is little or no recourse.

This is a more capricious system than any serious attempt to curb birth tourism could possibly be.

The system is also unserious. How are American officials supposed to know whether or not a woman is pregnant? The eyeball test? Sometimes pregnancy is obvious, especially in the late stages. Sometimes it’s not. In at least one recent incident, an airline forced a Japanese woman to take a pregnancy test on the spot before allowing her to board her flight.

That’s because the mere threat that a pregnant woman may not be allowed to enter U.S. territory has prompted some airlines to apply their own rules to a avoid having to send women back at airline expense should they be denied entry.

It’s funny how the Trump administration shifts its immigration goalposts. Not long ago, the argument for restricting immigration was that other countries were “not sending us their best.” Now the administration is worried about keeping out wealthy, educated people from afar because they’re terrified that they might have a child here who would be an American citizen.

At some point you have to wonder if maybe all of that concern has nothing to do with getting “the best people” and is nothing more than the gussied up nativism.

When you take all of this into account, it certainly looks like this new restriction isn’t about solving a problem, but the opening phase of an attack on the principle of birthright citizenship.

The president’s house nativists—including current White House staffer Steven Miller and former National Security Council aide Michael Anton—have made it clear that they want to restrict U.S. citizenship to those born in America, to American parents, period.

Such a goal flies in the face of the clear wording of the 14th Amendment and much subsequent jurisprudence. Not to mention the idea of irony.

Under Miller’s and Anton’s proposals, outspoken restrictionist Michelle Malkin—author of Invasion: How America Still Welcomes Terrorists, Criminals, and Other Foreign Menaces—would have been ineligible for birthright citizenship, since she was born shortly after her pregnant (non-citizen) mother and father came to America so that her father could complete his medical training.

It would be funny, if it weren’t so insidious.

Linda Chavez

Linda Chavez is a senior fellow at the National Immigration Forum and served in the Reagan White House as director of public liaison. Her views are her own and do not necessarily reflect those of any organization.