Prior to arguments in the U.S. Supreme Court Trump v. Barbara case, the U.S. Senate held a hearing reviewing the constitutional context of birthright citizenship for children of illegal aliens and tourists.
Throughout the March 10th hearing, Republican senators argued against current broad practices of granting citizenship to children born in the U.S. of illegal immigrants and foreign tourists.
“Illegal Immigration is fueled by the belief that a child, the child born here, will receive automatic citizenship,” U.S. Sen. Eric Schmitt, R-Mo said. “Citizenship should never be a loophole.”
Democratic senators, however, argued against President Donald Trump’s executive order ending birthright citizenship, claiming the 14th Amendment was clear.
“It’s time for us to protect constitutional rights, not violate them. On the question of birthright citizenship, that’s illegal,” U.S. Sen. Peter Welch, D-Vt., said. “I will not submit that an executive order by a president can overturn a Supreme Court decision.”
The exact wording of the 14th Amendment was considered by both parties to determine if illegal immigrants and tourist births qualified for citizenship, though both parties did not agree.
“American born children of visitors and illegal aliens [are] not subject to the jurisdiction of the United States and are therefore not entitled to birthright citizenship” Charles J. Cooper, chairman and founding partner of Cooper & Kirk PLLC, testified.
Amanda Frost, David Lurton Massee Jr. professor of law and director of the immigration migration and human rights program at the University of Virginia School of Law, addressed the birth tourism issue.
“There’s a law on the books, 21 CFR § 41.31, which makes it illegal to enter the United States on a tourist visa for the purpose of giving birth and empowers immigration officials to deny a visibly pregnant woman entry into the United States if they believe she will give birth during her visit,” Frost said. “The solution is to enforce the law on the books and not to deprive American families of the citizenship of their children born on U.S. soil, or force them to prove their lineage or lose their citizenship.”
Peter Schweizer, president of the Government Accountability Institute, said law Frost referenced has not always been enforced.
“The problem is that under certain administrations, the Obama administration, the Biden administration, they were told not to do that,” Schweizer said. “Customs and Border Patrol officials were told not to exclude people from coming to the United States in terms of birth tourism. This is a serious national security issue.”
U.S. Sen. Dick Durbin challenged Schweizer’s claim that the Obama and Biden administrations ignored the law and asked how many birth tourism violations Trump’s administration prosecuted. Schweizer was unable to give a definitive answer.
“You’re making some pretty wild claims here about a million Chinese who are going to vote absentee in the next election or do something that may be suspicious. You ought to come back to us with some data that backs that up,” Durbin said.
Durbin then asked Frost how Trump’s administration had enforced the anti-birth‑tourism visa regulation.
“This administration has not shared whether it’s enforcing this regulation,” Frost said.
Regarding birthright citizenship for children of illegal immigrants, the Democratic senators insisted that through the 14th Amendment, American-born children are citizens by constitutional right, no matter their parents’ citizen status.
“A recent Pew Research poll asked Americans whether they wanted children of immigrants, temporary immigrants, or any immigrants lawfully present in the United States to be citizens; 94% said yes,” Frost said.
The 2025 Pew poll Frost referred to regarding 94% of Americans saying yes was specifically for children of immigrants who legally entered the United States with only 50% support for children of illegal immigrants. The majority of support for birthright citizenship for children of illegal immigrants came from Hispanic Democrats, according to the poll.
The Supreme Court will convene on April 1 in the Trump v. Barbara court case to hear arguments from both sides.
