SCOTUS Doesn't Have The Final Word On Birthplace Citizenship

The Supreme Court's decision in the birthright citizenship case is "a monumentally terrible decision," says author Peter Schweizer, whose latest bestseller exposed China’s efforts to exploit birth tourism on an industrial scale.

... The decision, though expected by many, is absolutely terrible for American sovereignty, Schweizer believes.

Schweizer’s book, the #1 bestselling The Invisible Coup, cited statistics directly from the Chinese government and from researchers who have studied China’s "birth tourism" industry to conclude that as many as 1 million Chinese children have been born as birthright American citizens on U.S. soil in the past 14 years. The book also documented there are more than 1,000 Chinese companies operating in the U.S., and about 500 within China itself, that facilitate this practice.

"The only way to fix this fully is to amend the Constitution," Schweizer says.

But Schweizer also sees a legislative path. Many of the Chinese birth tourists are going to U.S. territories - Saipan in particular. Schweizer notes that residents of U.S. territories are not granted all the same rights as residents of U.S. states. They are not subject to the 14th Amendment...

"Within the U.S., go after birth tourism companies," Schweizer suggests, most of which operate in Southern California...

Schweizer says. "Trump, with an executive order, could simply say, 'Nope. We’re going back to the existing system. We're not going to do these 10-year visas anymore.'"...

There are Supreme Court decisions that faithfully interpret the Constitution, even when reasonable people disagree about the outcome. And then there are decisions in which the justices appear to begin with the outcome they want and only afterward search for constitutional language to justify it. The Supreme Court’s decision in Trump v. Barbara belongs firmly in the latter category...

A constitutional amendment is theoretically possible but practically unattainable. It would require approval by two-thirds of both houses of Congress, followed by ratification by 38 state legislatures. That is extraordinarily unlikely...

The more realistic path resembles the one that ultimately overturned Roe v. Wade. Congress could enact legislation specifying that birthplace citizenship does not extend to categories such as birth tourists, illegal aliens, and other temporary visitors. That statute would almost certainly be challenged immediately, requiring the Supreme Court to confront the constitutional question directly...

A statute enacted by Congress would present the issue in a fundamentally different posture, forcing the court to decide not whether a president exceeded his authority but whether Congress itself correctly interpreted the 14th Amendment...

... a future court could revisit the issue far sooner than the half-century it took to overturn Roe. If Congress presents the court with the right case, and if a future majority adopts a more historically grounded understanding of the 14th Amendment, Trump v. Barbara may ultimately come to be remembered not as the final word on birthplace citizenship but as another constitutional detour waiting to be corrected.

... Even though Trump could not on his own change the application of the 14thAmendment's citizenship clause, Kavanaugh said Congress could.

"If Congress amends [the Nationality Act, a 1940 law that statutorily recognized Supreme Court precedent on birthright citizenship] or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster," Kavanaugh wrote...

Section 5 of the 14th Amendment explicitly gave Congress the power to resolve the issue through legislation...

What is needed is legislation to define the meaning of "subject to the jurisdiction." The phrase itself remains undefined in the Constitution...

Majority Leader John Thune has shown himself unwilling to discard the filibuster for the sake of the election reforms contained in the SAVE America Act. But maybe if the future of the country were on the line with an opportunity to redefine citizenship, Thune would find his courage...