— President Trump, in an interview with WTVJ NBC6 Miami, Oct. 31, 2018
“You’re an enemy of our country. You’re a general with war on your mind. You’re a dictator who we hate and who’s against us. And that dictator and his wife have a baby on American soil. Congratulations. Your son or daughter is now an American citizen. Does anybody think this makes sense? Does anybody think it makes sense? Congratulations, general, you have a United States citizen as your daughter. It’s crazy. It’s crazy. But we’re getting it all worked out.”
— Trump, at a campaign rally in Columbia, Mo., Nov. 1, 2018
Trump could have picked literally any other imaginary threat during these riffs on birthright citizenship. But he somehow landed on enemy generals and foreign rulers, whose children are some of the rare exceptions to birthright citizenship under a 120-year-old decision by the Supreme Court.
Trump announced in an interview with Axios that he wants to end by executive order the constitutional right to birthright citizenship. The Supreme Court ultimately could find a way to rule in favor of Trump, but there is wide agreement among legal scholars that Trump’s plan is unconstitutional: The president can’t do this by himself and would need an act of Congress or a constitutional amendment.
The 14th Amendment and two key Supreme Court decisions indicate that any child born on U.S. soil has a right to U.S. citizenship.
In its 1898 decision in U.S. v. Wong Kim Ark, the Supreme Court listed the exceptions of “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes."
The court also described these same exceptions as covering “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.”
That’s it. No more exceptions. Even if a dictator or a hostile foreign general during wartime or a spouse managed to have a child in the United States (which is improbable at best), there’s a Supreme Court ruling that covers this situation and appears to contradict the president. (What are the odds?)
“I don’t know where he’s getting that from,” said Stephen H. Legomsky, a law professor at Washington University in St. Louis and former chief counsel of U.S. Citizenship and Immigration Services during the Obama administration. “As a practical matter, I’ve never heard of such a situation arising anyway.”
However, Trump is not entirely off-base. Legomsky said, “Given Wong Kim Ark, it’s clear that the children of enemy occupiers would not be covered. . . . in addition to that, the children of foreign diplomats are not covered.”
There has “never been any legal authority for the proposition that the children of foreign generals would not be covered,” he said, unless it was during an occupation.
Let’s say an enemy general or a spouse gave birth while vacationing at Disney World. The proud parent would have to be invading or occupying the state of Florida for the child to be exempt from U.S. citizenship under Wong Kim Ark. “There’s no provision that says because your parents hate the United States, you’re not covered,” Legomsky said.
Trump imagined “a general who’s on an opposing army, and we’re at war, comes into the United States,” he said.
It’s unclear whether he was talking about an invasion, but his scenario comes awfully close. How else would an enemy general set foot here during a war?
Things get a little trickier when imagining a foreign dictator or a spouse giving birth in Florida.
The “children of foreign sovereigns or their ministers” are not eligible for birthright citizenship under Wong Kim Ark, so all the monarchs are out. As for a dictator, the dictionary defines “sovereign” as “one possessing or held to possess supreme political power or sovereignty,” as “one that exercises supreme authority within a limited sphere,” as “an acknowledged leader” or “arbiter.” Kim Jong Un, for example, seems to check all the boxes, and like a monarch, his title was passed on from his father and grandfather.
The White House did not respond to our questions, and there’s no word when Trump might issue this executive order.
At his Nov. 1 rally, Trump also complained that “this policy has even created an entire industry . . . birth tourism."
“Pregnant mothers from all over the world travel to America to make their children instant lifelong citizens with guaranteed everything,” he said.
This does happen, though the birth tourism industry caters mostly to wealthy Russian and Asian women. Estimates vary as to how many thousands of cases there are per year, so it’s hard to get a good read on this issue. One place to start might be Trump’s properties in Florida, a hot spot for Russian birth tourism. The Trump Organization does not benefit directly, according to the Daily Beast, because the expectant Russians are subleasing privately owned condos marketed to them for long stays. However, the nearby Trump International Beach Resort gets some of their business if they wander over there.
The Pinocchio Test
Hostile dictators and enemy generals are not really the target market for the birth tourism industry, but it won’t stop us from rating Trump’s claims. We’re giving Three Pinocchios. The president mentioned enemy generals — but not specifically an occupation of U.S. territory, which is the key ingredient for an exception to birthright citizenship. The stuff about dictators is much shakier. The Supreme Court said 120 years ago that the children of “foreign sovereigns or their ministers” were not eligible for birthright citizenship. Dictators seem pretty sovereign to us.
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