The US has a strategy of restricting immigration, and this new policy is undoubtedly part of that strategy. But is it legal?
J. Craig Barker
@jcraigbarker

January 26, 2020

The United States of America has today begun implementing a new policy aimed at restricting the granting of visas to women travelling to the US “primarily to give birth” in order that their children can be entitled to a US passport. The US is one of a relatively small number of countries that grants citizenship to individuals born in the US (commonly referred to as birthright citizenship or jus soli). Most states link the citizenship of babies to that of their parents (jus sanguinis) or they confer citizenship later in life through processes of naturalization, including through citizenship by investment.

President Donald Trump has long criticised the concept of birthright citizenship and the related practice of “birth tourism” which the new policy is intended to prevent. Trump originally sought completely to remove birthright citizenship but faced challenges insofar as the right was established as far back as 1868 by virtue of the Fourteenth Amendment to the US constitution.

Changing a provision of the constitution is not an easy task, and requires endorsement by each of the individual States of the Union. Furthermore, the symbolic importance of birthright citizenship in the US cannot be underestimated, given its connection to the abolition of slavery, which was affirmed by the Thirteenth Amendment in 1865, and the associated requirement of granting nationality to the children of African-American slaves.

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J. Craig Barker is Dean of the School of Law and Social Sciences at London South Bank University.