Birthright Citizenship: 320,000 Births Under an 1868 Rule

The Supreme Court ruled in Trump v. Barbara on June 30, 2026 that children born on American soil are American citizens, regardless of if their parents are in the country illegally or on temporary visas. This struck down Executive Order 14160, which President Trump signed on his first day of office in January 2025. The ruling reaffirmed United States v. Wong Kim Ark, the 1898 decision that had governed this debate for 128 years.^[1]

The margin on the judgment understates how close the underlying question was. Chief Justice Roberts wrote for five justices holding that the Fourteenth Amendment itself compels the result. Justice Kavanaugh provided the sixth vote but refused to join that reasoning. He concluded only that the order conflicted with the citizenship law Congress had already passed, and he wrote that Congress might constitutionally add new exceptions to birthright citizenship beyond the traditional ones. Justices Thomas, Gorsuch and Alito dissented.^[1]

Because five justices put the rule in the Constitution rather than in the citizenship law, Congress cannot narrow it by passing a new law.

A rule written for a country without immigration limits

The Citizenship Clause was ratified in July 1868 to secure citizenship for freed slaves. Congress wrote it into a country that placed no numerical ceiling on immigration whatsoever. The first federal restrictions were categorical rather than numerical: a ban on certain immigrants in 1875, the Chinese Exclusion Act in 1882, exclusions for disease and destitution in 1891.^[6]

The first numerical quotas came in 1921, and the Immigration Act of 1924 cut admissions to roughly 165,000 a year and created the Border Patrol to enforce the new limits.^[6] For the first 53 years the Citizenship Clause existed, there was no cap to violate.

Wong Kim Ark was decided in 1898, inside that same window. Wong's parents were lawful permanent residents of San Francisco. The Court that decided his case had never seen the situation the Court confronted in June.

Federal estimates put 2.06 million illegal immigrants in the country in 1980 and 3.2 million in 1986, the year Congress legalized roughly 2.7 million of them and knocked the total down to 1.9 million by 1988.^[7] It reached 7 million by 2000, peaked at 12.2 million in 2007, and stood near 14 million in 2023.^[8]

Births followed the same curve. About 380,000 children were born to illegal-immigrant mothers in 2006. The number fell more than 40% to 215,000 by 2019, then climbed to 300,000 by 2023. Counting mothers on temporary status adds another 20,000, for roughly 320,000 births, about 9% of the 3.6 million children born in the United States that year.^[9]

The wording of the clause has not changed since 1868; the size of the population it reaches has.

Why a new law would fail

Three bills in Congress would restrict birthright citizenship by ordinary legislation. The Birthright Citizenship Act, from Representative Brian Babin and Senator Lindsey Graham, and Senator Tom Cotton's Constitutional Citizenship Clarification Act were both introduced in 2025. Representative John McGuire introduced the Birthright Citizenship Clarification Act on July 9, 2026, nine days after the ruling, which would write the voided executive order into federal law.^[3]

All three rest on the same theory: that Congress can define who counts as "subject to the jurisdiction" of the United States. Five justices have now said the Fourteenth Amendment answers that question on its own. In City of Boerne v. Flores the Court held that Congress's power to enforce the Fourteenth Amendment is the power to enforce it as the Court has read it, not to rewrite it.^[4] A bill that contradicts the Court's reading gets the same treatment the executive order got.

Kavanaugh's concurrence points the other way, and it is narrower than it looks. He did not say Congress may narrow the Citizenship Clause. He said Congress might add exceptions alongside the established ones for diplomats and hostile occupiers, and he was one justice writing alone. Building a legislative strategy on a single concurrence means needing a fifth vote that does not currently exist.

What can be done

Neither change below decides who is born a citizen. Both sit in ordinary immigration law, which the ruling left alone.

1. The green card a citizen child can get for a parent

A citizen child who turns 21 may petition for a parent to receive a green card, and that petition is not subject to any annual cap.^[10] What happens next depends on how the parent entered.

• A parent who arrived on a visa and overstayed is treated as an immediate relative. That parent is exempt from the usual penalties for overstaying or working without permission and can obtain a green card without ever leaving the country.^[11] Overstays are about 42% of the illegal population.^[15]
• A parent who crossed the border without inspection cannot get a green card from inside the country and must leave to apply, which triggers a ten-year bar on returning. The waiver for that bar requires proving hardship to a citizen spouse or parent, and federal regulation does not count a citizen child as a qualifying relative.^[12]

Only the first route works in practice, and Congress can close it by taking parents out of the immediate-relative category. The common claim that a citizen child can sponsor any parent at 21 fails for everyone who crossed the border illegally.

2. Birth tourism

The Center for Immigration Studies estimates more than 33,000 children a year are born to foreign nationals who travel here specifically to give birth.^[13] Senator Marsha Blackburn's Ban Birth Tourism Act, introduced May 20, 2025 and referred to the Judiciary Committee, would make travel for that purpose a ground for denying a visa.^[14] Consular officers can already refuse a visitor visa when they determine the applicant's primary purpose is giving birth on American soil, and those refusals are generally beyond judicial review.

Recommendations

The ruling put the child's citizenship beyond the reach of Congress. The green card a parent can collect years later is ordinary immigration law, and Congress can change it.

1. Take parents out of the immediate-relative category. Immigration law puts the parent of an adult citizen in the same category as a spouse or a minor child. That category does two things: it exempts the person from the annual green-card caps, and it lets them apply from inside the United States even after overstaying a visa. Anyone else who overstays by more than a year has to leave to apply, and then cannot return for ten years.^[11] Congress can drop parents from the category and keep spouses and minor children in it. A parent who overstayed would then have to leave like everyone else. The child stays a citizen either way.
2. Enact the Ban Birth Tourism Act (S. 1812). Make travel undertaken primarily to give birth in the United States a ground for visa refusal, and fund the consular training and enforcement to apply it against the estimated 33,000 birth-tourism births a year.^[14]
3. Require USCIS to publish the number. No federal agency reports how many green cards go each year to parents sponsored by a citizen child. Without that figure the size of the pathway is guesswork.

Sources

1. Trump v. Barbara, No. 25-365 (June 30, 2026) - Opinion of the Court, concurrence, and dissents
2. Executive Order 14160, "Protecting the Meaning and Value of American Citizenship," January 20, 2025
3. Constitutional Citizenship Clarification Act of 2025, S. 2274, 119th Congress
4. City of Boerne v. Flores, 521 U.S. 507 (1997) - Limits on Congress's power to enforce the Fourteenth Amendment
5. United States v. Wong Kim Ark, 169 U.S. 649 (1898) - The 1898 decision establishing citizenship by birth on U.S. soil
6. Migration Policy Institute, "A Century Later, Restrictive 1924 U.S. Immigration Law Has Reverberations in Immigration Debate" - Absence of numerical limits before 1921; the 1924 Act and the creation of the Border Patrol
7. Congressional Research Service, RL33874, "Unauthorized Aliens Residing in the United States: Estimates Since 1986"
8. Pew Research Center, unauthorized immigrant population estimates - 1990-2023 population series and the 2007 peak
9. Pew Research Center, "About 9% of U.S. births in 2023 were to unauthorized or temporary legal immigrant mothers" (March 31, 2026)
10. 8 U.S.C. § 1151(b)(2)(A)(i), immediate relatives exempt from numerical limits
11. USCIS Policy Manual, Volume 7, Part B, Chapter 4: Status and Nonimmigrant Visa Violations - Immediate-relative exemptions from the bars to adjustment of status
12. 8 CFR § 212.7(e)(4), provisional unlawful presence waiver: qualifying relative - Qualifying relative limited to a U.S. citizen or lawful permanent resident spouse or parent
13. Center for Immigration Studies, "Births to Illegal Immigrants and Long-Term Temporary Visitors"
14. Ban Birth Tourism Act, S. 1812, 119th Congress
15. Center for Migration Studies, "The 2,000 Mile Wall in Search of a Purpose" - visa overstays as 42% of the illegal population