Mid-Air Birth Flies Home How Stupid Birthright Citizenship Is

To borrow from comedian Jeff Foxworthy’s famous redneck schtick, if you were born on a flight over U.S. air space, you might be a U.S. citizen. 

The latest birthplace debate underscores just how insanely stupid sweeping birthright citizenship has become in the modern age. And it’s another example of why the U.S. Supreme Court needs to fix a flawed 130-year-old interpretation of the Constitution. 

‘A Child Born on a Plane’

Multiple corporate outlets had some fun reporting on the “stork” story of a passenger who gave birth over the weekend during a flight from Jamaica to New York City.  The Caribbean Airlines flight “landed at New York’s John F. Kennedy international airport with one more person than it took off with,” the liberal Guardian guffawed.

As the cheeky piece explained, the citizenship status of the newborn remained up in the air because officials had yet to make clear the citizenship status of the parents — “and where the plane was at the exact moment the baby was born.” The child would, of course, automatically be a U.S. citizen if either parent is a U.S. citizen. If not, it depends on precisely where the birth occurred. If the answer is within 12 nautical miles of the U.S. coastline, the newborn just won the U.S. citizenship lottery. 

“… [A] child born on a plane in the United States or flying over its territory would acquire United States citizenship at birth,” the State Department’s rule states. 

All of this drives home the point that the expansive view of birthright citizenship is a bastardization of the law — and it needs to end. This Supreme Court has a chance to bring sanity to more than a century of manipulation of the 14th Amendment’s Citizenship Clause, twisted to appease myriad monied interests. 

‘Wherein They Reside’

Last week, the court heard oral arguments in Trump v. Barbara, a challenge to President Donald Trump’s first-day-in-office executive order denying automatic citizenship to children born to illegal aliens or to “birth tourists” and others that have long gamed the system. 

As Hans Mahncke wrote this week in The Federalist, the question before the court is whether the 14th Amendment’s Citizenship Clause extends to “every child born on American soil, no matter who the parents are or why they are in the United States.” And American waters and airways, as the ridiculous expanded interpretation goes. 

While it seems inconceivable that the three liberals on the court would stand with Trump on doing away with the birthright citizenship, members of the conservative majority seemed skeptical of the government’s arguments. Perhaps that’s because, for reasons not entirely clear, Solicitor General D. John Sauer failed to press the jurisdictional language of the amendment. But the justices seemed to be missing the key point of a post-Civil War constitutional amendment meant to extend U.S. citizenship to former slaves, not to grant it to millions of children of noncitizens by virtue of being born within the boundaries of America. 

The Amendment declares:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Ira Mehlman, director of media for the Federation for American Immigration Reform (FAIR), contends the phrase that pays in the 14th— is “and subject to the jurisdiction thereof.” 

“What does it mean to be subject to the jurisdiction of the United States? Does it simply mean that you’re here and you have to obey the laws like everybody else? Or does it mean something deeper,” Mehlman said this week on The Federalist Radio Hour. “We know that, for instance, children born to foreign diplomats in the United States are not U.S. citizens because they’re simply not subject to the jurisdiction of the country.” 

Mahncke wrote that the real argument turns on one word in the Citizenship Clause, which has largely escaped scrutiny: reside. 

“Perhaps because it comes at the end, it has been treated as an afterthought, but careful reading shows how central the term ‘reside’ is,” Mahncke asserts. “The clause does not say ‘are born,’  ‘are physically present,’ or ‘pass through on a tourist visa.’ Citizenship is granted only to those who actually ‘reside,’ establishing a precondition for the clause’s application…”

‘The Consequences Are Severe’

The justices on the highest court in the land may not get it, but most Americans do. 

A Rasmussen Reports national poll released Tuesday found 59 percent of likely U.S. voters support limiting automatic birthright citizenship to births where at least one parent is a U.S. citizen or legal permanent resident. That includes 39 percent who strongly support such limits. About one-third surveyed (34%) are opposed, including 23 who strongly oppose limitations.  

A Pew Research Center poll in June found Americans divided on automatic citizenship to children born to illegal immigrant parents.  

Right on cue, corporate media outlets and liberal organizations have been pushing a narrative and polls that show overwhelming support for birthright citizenship. As always, in polling much depends on how the question is asked.

One thing is for certain, the crafters of the Citizenship Clause did not foresee the rise of “birth tourism,” which has, according to FAIR, “exploded into a coordinated global enterprise, with roughly 33,000 tourist-visa births per year and more than 70,000 total foreign births annually.”

“The consequences are severe: nearly 1.5 million U.S.-citizen children raised overseas with primary loyalty to the Chinese Communist Party, an explosion of chain migration, and more than $150 billion in annual net costs shifted onto American taxpayers,” the Federation reports. 

And it’s safe to say the denizens of 1868 did not envision babies born mid-air and the dividing line between citizen and noncitizen. For the real originalists on the court, and the liberal justices selectively claiming that space, the Citizenship Clause is more than location; it’s the intent of the time in which it was written.  

On that score, birthright citizenship should be blown out of the air. 

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.