Over the next few weeks the news cycle will be paralyzed by an impeachment trial that is essentially about foreign interference in our politics. However, the Trump administration has an opportunity to act on one of the most sinister foreign influences in our country, namely, birth tourism, being used by — you guessed it — Russia and China. If foreign influence is of such great concern to Democrats, shouldn’t we all agree to stop the practice of awarding those who lie to get into the country or who infiltrate our border with the ultimate prize of American citizenship?

Over the weekend, Axios reported that the Trump administration might move ahead with a plan to finally end the birth tourism loophole in our citizenship policies. Conservatives would be wise to push the president to enact the most sweeping reforms possible and dare Democrats to oppose his effort to combat the ultimate foreign influence in our elections.

The Center for Immigration Studies estimates that there are roughly 33,000 babies born to tourists every year. No, these are not people who misjudged their due dates and decided to travel here late in their third trimester of pregnancy. These are, for the most part, wealthy foreign nationals, most predominantly from Russia and China, who seek to exploit our senseless policy (not law) of granting citizenship to any child born here, even under such temporary circumstances. That child can then vote in our elections 18 years later and bring in the rest of the family on a permanent basis. Thus, those who tell us they are coming for the purpose of tourism can subvert our sovereignty and unilaterally assert jurisdiction for their children against our will.

If the Trump administration allows this scam to continue. Even if one believes the Wong Kim Ark Supreme Court decision creating a constitutional right to birthright citizenship is correct, the author of that decision clearly stated that it only applies to those consensually admitted into this country for permanent domicile. After declaring a revolutionary right to birthright citizenship for legal immigrants in a bizarre reversal from his own previous opinion, Justice Horace Gray qualified the mandate to grant citizenship to children of those immigrants living here only “so long as they are permitted by the United States to reside here.”

Gray used the term of art “domiciled” 12 times throughout the opinion when defining those covered, in his view, by the Citizenship Clause. As I’ve written previously, Gray’s past writing show that “domicile” means what we would consider today a green card holder, aka a legal permanent resident.

The New York Times is lamenting how the State Department is not letting a “jihadi bride” back into the U.S. now that she is on the losing side of her treason. But there is another point that everyone is missing from the case of Hoda Muthana: What is government doing to ensure that children of diplomats are not automatically, illegally granted citizenship?

Hoda Muthana is the daughter of one of the many millions of Middle Eastern immigrants we’ve admitted in recent decades who have developed radical jihadist views. She left this country in 2014, married a total of three ISIS fighters (her first two husbands were killed) and even posted a video of burning her U.S. passport. She tweeted messages calling for spilling the blood of veterans on Memorial Day. Now that the caliphate collapsed, she is begging to come back in and is claiming she has changed her views.

Why are children of diplomats being granted American citizen documents?  

The presumption in the media when the case first broke was that she was a traditional American citizen, being born in the U.S. to legal permanent resident parents. But the State Department is contending that she was never a legitimate American citizen because she was born to a Yemeni diplomat to the U.N. living here on a special diplomatic visa, such as a G-2 visa.

While the details of this particular case are still murky, it raises a general concern about the thousands of kids born on our soil to diplomats of all stripes from all regions in the world. Even according to those who hold the misguided view that birthright citizenship is not only in the 14th Amendment but applies to people who violate our sovereignty and reside here without permission, that does not extend to children of diplomats. There is no dispute about that. Yet, as the Center for Immigration Studies reported several years ago, the government has been so lax in enforcing this that “children born to foreign diplomats on U.S. soil [are] receiving U.S. birth certificates and Social Security numbers (SSNs) — effectively becoming U.S. citizens.”

In extensive research, Jon Feere of the Center for Immigration Studies found that the lack of enforcement by the Social Security Administration, the U.S. Citizenship and Immigration Services, the State Department, and several other agencies has allowed all children

of foreign diplomats to become de facto citizens, with birth certificates and Social Security cards. While the issuance of a birth certificate and Social Security card doesn’t necessarily make someone a citizen, it has the effect of granting him de facto citizenship until the agencies clamp down on this practice.

This is an especially perverse outcome since foreign diplomats and their families are granted diplomatic immunity from prosecution of many laws. Illegally granting these citizenship, against the consent of the citizenry, makes them super-citizens — enjoying the rights of America and free from prosecution for many types of law-breaking.

In this case, if the State Department is correct that Muthana was born here when her father was a diplomat, then how did she hold a U.S. passport? Presumably, because hospitals are given no guidance in handing out birth certificates to anyone born here under any circumstance, and she was granted an official birth certificate and American SSN, which treated her as a citizen from day one.

Dan Cadman, a former ICE agent and fellow with the Center for Immigration Studies, expressed concern in an email to CR that this case of de facto stolen citizenship only came to light because of the terrorism angle:

As this case shows, there are no substantive procedural safeguards to prevent the children of diplomats from being vested with the trappings of citizenship, up to and including passports and Social Security cards, because key agencies of government such as the State Department and Social Security Administration don't meaningfully interact with state vital statistics bureaus. It took the scrutiny of major international media organizations focusing on this three-time jihadi bride before our own government inquired deeply enough to reveal the facts — else she could have spent the remainder of her life living as a citizen.

Another example of why unqualified birthright citizenship is wrong

The jihadi bride case is just one more proof that the entire idea of birthright citizenship for those here illegally was not a deliberate decision born from the consensus understanding of the Wong Kim Ark decision, somehow applying also to those who break into our country, as Justice Brennan suggested in his infamous footnote in Plyler v. Doe.

The federal government has never deliberately decided to grant automatic citizenship to children born to illegal aliens. No national discussion occurred to apply the Wong case to illegal aliens, as indicated in the footnote of the Plyler case. And as I proved conclusively, nobody ever thought to actively grant such a right because it would have contradicted our immigration laws.

It likely evolved from sheer laziness and practicality. Given that all children born to legal immigrants were granted birthright citizenship before the influx of illegal aliens — either as a matter of practice or resulting from the 1898 court decision — the relevant agencies never bothered to enforce verification and give the hospitals forms that required one parent to show his or her Social Security card. It was easier to grant anyone born in an American hospital citizenship, especially because illegal immigration en masse did not occur until the mid-twentieth century.

According to Professor John Eastman of Chapman University School of Law, the passport office up until the late 1960s did not presume birth on U.S. soil meant you were entitled to a passport. “If you were born on US soil that wasn’t sufficient to prove your citizenship to get a passport, you also had to show the status of your parents when you were born on US soil,” said the legal scholar on a podcast in November. Indeed there is no evidence we ever handed out citizenship to children of guest workers during the 1920s.

It was only after the problem became so pervasive and conservatives began calling attention to it in the early 1990s that liberals retroactively created a convoluted legal rationale based on the Brennan’s footnote and a misunderstanding of the obscure Wong case to defeat popular and commonsense efforts to end the practice.

The proof is in the pudding: We all agree children of diplomats are excluded from citizenship, yet there is no enforcement mechanism to stop them other than the honor system.

So why doesn’t our government care to safeguard the crown jewel of our national citizenship? From our earliest days, we’ve always had a vetting process and a probationary period to see if we want to grant citizenship to a given family. The notion that anyone born on our soil, even those here illegally or on non-immigrant visas, which did not require strong vetting or an oath of allegiance, could somehow force their children upon us is absurd. The crafters of the 14th Amendment explained that “subject to the jurisdiction of” meant those who owed all “allegiance” to America.

This case is a superlative example of stolen sovereignty, because the U.N. is full of diplomats from nations who have disdain for our values. The idea that if Muthana’s father was on a diplomatic visa simply because we house the U.N. on our soil, that should entitle his kid to citizenship, even if Muthana’s CAIR lawyer is correct in asserting that she was born after her father was no longer a diplomat, is absurd. If her father did not have a green card at the time of her birth, she should not be a citizen. As Cadman says, “Whether or not her father violated the conditions of his admission or not, he was admitted as a diplomat, and accredited as such, and under the provisions of the U.S. Constitution and international law, he was never ‘subject to the jurisdiction’ of the United States and thus could not confer citizenship upon his child simply by virtue of birth here.”

We will have to wait for the details on this case as the lawsuit goes on, but it should force action in general to protect our citizenship from people who clearly are not entitled to it, beginning with children of diplomats and eventually including those who willfully steal our sovereignty as illegal immigrants.

Sen. Ted Cruz, R-Texas, threw his support behind President Donald Trump's proposal to end birthright citizenship for children of illegal immigrants Wednesday in an interview on Fox News.

"As a policy matter, President Trump is exactly right. Birthright citizenship doesn't make any sense," Cruz told Fox News' Shannon Bream.

"What it ends up doing is incentivizing illegal immigration. We need to be securing the border and stopping illegal immigration," he added.

Cruz briefly discussed the debate among legal scholars about the means by which birthright citizenship for the children of illegal immigrants might be ended — whether an act of Congress, constitutional amendment, or executive order might do it. LevinTV host Mark Levin and Conservative Review senior editor Daniel Horowitz explained earlier this week that birthright citizenship is an invention of the federal bureaucracy and President Trump has the power to correct this misunderstanding of the Constitution.

"Whatever means is used, the policy is the right policy," Cruz said.

Tuesday on his radio program, LevinTV host Mark Levin spoke with Conservative Review senior editor Daniel Horowitz about birthright citizenship — and that President Donald Trump is entirely within his rights to interpret and enforce the 14th Amendment to the Constitution.

Horowitz told Levin that President Trump has the authority to issue an executive order clarifying how the executive branch will interpret the 14th Amendment concerning the citizenship status of children born in the United States to illegal aliens. He said that those who say otherwise, including House Speaker Paul Ryan, R-Wisc., are "constitutionally illiterate."

"Let's put this in plain English here," Horowitz said. "Basically they're saying, Mark, I could break into your home, kick down the door, drop a kid there, and he has the right to live there for the remainder of his life and there's not a darn thing you can do about it."

"The reality is that even if we agree to the notion of birthright citizenship ... there is no way you could extrapolate that to people who came here without consent. The key words are 'consent' and 'sovereignty.' Nothing ever supersedes that. Nobody could unilaterally assert jurisdiction and make it that there's nothing we can do to stop this," he continued.

Listen:

At Levin's request, Horowitz explained how an executive order issued by Trump ending birthright citizenship for children of illegal immigrants would not be lawless because the order would be pursuant to law. It is not like Obama's illegal DACA amnesty, which was an order contrary to law.

"For 130 years there's an uninterrupted stream of case law, including cases written by the Wong Kim Ark justice, Horace Gray, saying that if you come here without consent and you do not have legal status, it is, in the most literal and physical sense, as if you are standing outside of our boundaries in terms of access to the courts, in terms of rights, in terms of everything," Horowitz said. This means that the 14th Amendment does not grant citizenship to the children of illegal aliens.

Horowitz made the point that our modern concept of birthright citizenship came about not as the result of a court decision, not by an act of Congress, but by the executive branch's lax enforcement of immigration law. Levin pointed out that if birthright citizenship is a bureaucratic creation, as the chief of the bureaucracy, President Trump has the right to correct years of extra-constitutional behavior by the executive branch.

"He's not changing the Constitution by executive order. He's not reinterpreting the Constitution by executive order. He's getting the executive branch under control and saying, 'This is what the 14th Amendment means,'" Levin said.