After Supreme Court Loss On Birthright Citizenship, White House Eyes Crackdown On 'birth Tourism'

President Donald Trump lost his decade-long bid to end birthright citizenship, but the administration’s zeal to curtail illegal immigration is far from over — instead, it’s being redirected into policies targeting women who come to the U.S. to give birth so their child will automatically be a citizen.

In the hours after the Supreme Court defeat, White House aides and allies discussed a number of policy options, according to two administration officials and several others close to the administration. Suggestions range from prosecuting organizations or individuals involved in “birth tourism schemes” or women already in the country for fraud to barring entry of pregnant women entirely.

The immediate discussions reflect the administration’s determination to project momentum on one of the president’s signature priorities despite the Supreme Court setback. While officials and allies expressed frustration with the ruling, they had largely anticipated the outcome and are now intent on reassuring supporters that the decision will not derail the administration’s broader efforts to curtail illegal immigration.

“Going forward, the administration will continue its fight against pull factors for illegal immigration and aliens with fraudulent intent to enter the U.S. solely to have children here,” said an administration official, granted anonymity to discuss internal thinking.

The president launched his efforts to end birthright citizenship with a day one executive order, in which his administration used the threat of “birth tourism” as the rationale for ending the practice of granting automatic citizenship to children born on U.S. soil.

Shortly after the court’s ruling, the Justice Department released a memo urging U.S. attorneys to work with DHS to “prioritize the investigation and prosecution of birth tourism schemes.”

The memo said “thousands of foreigners” travel to the U.S. each year under “false pretenses to give birth and secure citizenship for their child.” Estimates are uncertain, but based on a review of U.S. Census data, up to 26,000 babies born in the U.S. annually could be attributed to women coming to the U.S. solely to give birth — a fraction of the more than 3.5 million yearly U.S. births, according to the non-partisan Migration Policy Institute.

The memo said while most cases could be prosecuted under visa fraud, attorneys should also look to other federal statutes, including wire fraud, money laundering, unlawful use of means of identification, identity theft and conspiracy to commit health care fraud. The memo builds on a DHS effort announced this spring to root out networks that help pregnant foreigners come to the U.S. to give birth.

“Everybody should agree that it’s a violation of our laws if your intent in coming here, if you’re pregnant, is to have a child to become a U.S. citizen,” acting attorney general Todd Blanche told reporters Wednesday. “And so what we have to do as the Department of Justice is make sure our agents, our HSI agents that we work with, and the FBI are focused on stopping that.”

Border czar Tom Homan, Department of Homeland Secretary Markwayne Mullin and White House deputy chief of staff of policy Stephen Miller met Tuesday at the White House with the president to discuss policy options, Mullin said Wednesday on Fox News. White House spokesperson Abigail Jackson said the president “remains totally committed to protecting the value of natural-born American citizenship,” and that in addition to cracking down on "birth tourism," the administration will also “double down on our efforts to keep the border secure and deport illegal aliens.”

The administration is also discussing ways to ramp up enforcement writ large, with this week’s ruling adding fuel to efforts to remove immigrants residing in the U.S. under temporary status, including temporary protected status and parole.

A second administration official, granted anonymity to discuss internal thinking, said the ruling could expand the use of a section of federal law known as 212(f) to ban some immigrants from entering the United States. Allies were more direct, arguing that the Supreme Court ruling does not prohibit the administration’s ability to prohibit pregnant women from entering the country.

“Under current law, pregnant women can be barred from entry, and the president can do that under 212(f), again existing law,” said Ken Cuccinelli, who served as the deputy DHS secretary during Trump’s first term. “The State Department can bar those visas, and CBP can bar entry for those folks if the president chooses to do that.”

Mullin, on Fox News, offered a similar assessment, pointing to travel during late-term pregnancy.

“You’re not going on vacation, in an emergency, in late-term pregnancy. Those are some issues we can look at,” he said. “Because at the end of the day, it is national security.”

Pregnant women are not currently prohibited from traveling to the U.S., but consular officers do have the discretion to deny visitor visas, and U.S. Customs and Border Protection officers can deny entry, if they believe a woman’s primary purpose for traveling is to have a child in the U.S., noted Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a group that looks to curtail legal and illegal immigration. The administration could impose additional limits on temporary visas, requiring short-term visa and entry applicants to disclose if they are pregnant or planning to give birth in the U.S.

“That way, there will be a paper trail if the woman does end up having a child here, and potential grounds for visa revocation and other penalties, perhaps even a permanent bar to future entry,” Vaughan said.

She added that the government could also terminate the policy of allowing visa-free travel to some U.S. territories, including the Commonwealth of the Northern Mariana Islands. Congressional Republicans have pointed to the island, which lies roughly one-third of the way between mainland China and the continental U.S., as a national security concern.

Trump, who has called birthright citizenship a “magnet for illegal immigration” and took the unprecedented step of traveling to the Supreme Court to listen to oral arguments in April, placed the onus on Congress on Tuesday to push the issue forward. Administration officials privately acknowledge there aren’t the votes for a constitutional amendment, but the court loss did reignite a push among Republican lawmakers who have introduced legislation to target temporary visitors who intend to give birth in the United States.

“We need to be voting on these every week until we provide the American people with an answer for this question,” said Sen. Rick Scott (R-Fla.), who pointed to his past bills on the issue.