Discussion on how to end the “anchor baby” problem whereby kids born to tourists, illegal aliens, and other non-resident aliens are documented as U.S. citizens by virtue of being born in this country has focused on getting a law through Congress and signed by the president. That would set the stage, when challenged by the immigration advocacy lobby, for a Supreme Court decision on whether the current practice is required by the citizenship clause of the 14th Amendment.
But, the debate over this issue prompted by Donald Trump’s immigration policy paper has provoked another view on that issue. Writing in The Hill Center for Immigration Studies staffer, John Frere, suggests that there is also an option for executive action.
As much as executive action on immigration has become abused by the Obama administration to dismantle immigration law enforcement, it could work to toughen enforcement. In the area of birthright citizenship a president could instruct the executive branch to apply a definition of U.S. citizenship by birth that recognizes only those births that are to one or more U.S. citizens or legal permanent residents. Frere argues that this action could deny U.S. passports and SSNs to the children born to tourists, illegal aliens and other non-residents.
The application for a U.S. passport already requires the applicant to specify the names and birth places of the parents. That information coupled with immigration data on the parents would establish whether the birth of the child conformed to the new birthright policy. If this were done, it would immediately impact the birth tourism industry, because the purpose of it is to gain a U.S. passport for the baby before returning home. It would have less impact on illegal aliens, because they generally have no short-term intention of traveling home and, therefore, are less likely to apply for a passport for the child.
The issue of curtailing the issuance of an SSN to newborns would be more complicated. The process now starts in hospitals for newborns. The information on the application for an SSN does not require the same information about parents as does the passport application. This means that a new form would be required and a new capability would have to be created in SSA – or farmed out to another agency – to vet the status of the parents and whether they met the new criteria for automatic citizenship for the newborn.
The most important benefit of executive action on the anchor baby issue would be that even if it were confined to the issuance of passports, it surely would provoke a lawsuit challenging the new policy in the same way as would passage of a law. That means that opponents in Congress could not prevent the issue coming before the courts.