Trump’s Executive Order on Birthright Citizenship Faces Legal Scrutiny

President Trump struggles to accept the Supreme Court’s decision on birthright citizenship. The ruling states that the Constitution ensures citizenship for children born to parents unlawfully or temporarily in the U.S. Despite this, Trump recently issued a new executive order attempting to deny citizenship to certain newborns, based on their parents’ status.

The Supreme Court invalidated Trump’s initial executive order, “Protecting the Meaning and Value of American Citizenship,” with a 6-3 majority. The order had sought to exclude children of temporary visa holders and unlawful entrants. Chief Justice John Roberts clarified in the case Trump v. Barbara that a child born on American soil under American law is an American citizen. Trump’s response was to condemn the decision, calling it “absolutely insane” and a “miscarriage of justice,” despite its adherence to a longstanding precedent.

Rather than pursue an unwinnable rehearing petition, Trump issued another executive order titled “Continuing to Protect the Meaning and Value of American Citizenship.” This new order aims to extend the Supreme Court’s ruling by adding more categories of non-citizen children, reaching beyond the limited exceptions in Trump v. Barbara. Additionally, Trump issued an order denying visas to “birth tourists.”

The majority opinion in Trump v. Barbara emphasized that the 14th Amendment confers birthright citizenship to all persons born in the U.S. under U.S. jurisdiction. Exceptions were limited to those physically beyond American law’s reach, such as children of enemies during a hostile occupation or foreign diplomats. Trump interprets “extraterritorial fiction” as a means to create new exceptions for “categories of children of aliens” not covered by birthright citizenship.

As journalist Joe Patrice noted, Trump uses a rhetorical maneuver by changing the noun to exclude children based on their parents’ status. The Supreme Court’s narrow exclusion only applied to children with physical or nominal extraterritoriality, while Trump’s order targets children because their parents fall under his new definitions.

Among Trump’s new categories is one aimed at curtailing birth tourism. It denies citizenship to children whose non-citizen parent engaged “in a commercial transaction with a surrogate present in the U.S. to give birth.” Yet, according to the Centers for Disease Control and Prevention, fewer than 10,000 embryo transfers to surrogates occurred in 2022, making this impact minimal. Another study showed that from 2014-2020, 32% of 40,177 embryo transfers were for international parents, resulting in fewer than 1,500 births per year.

Perhaps Trump’s most severe exclusion targets children where a parent is an “alien enemy,” linked to Foreign Terrorist Organizations. Identifying such individuals at birth is nearly impossible, making denial of citizenship likely to occur later in life. This could retroactively make American-born individuals stateless, unable to have passports and at risk of deportation, despite their U.S. birth certificates.

Although no sympathy exists for “alien enemies,” their children are blameless. The Constitution forbids “corruption of blood” as a punishment for treason, yet Trump’s order aims to enforce long-term consequences on innocent children due to their parents’ actions. The order is criticized for being disingenuous, performative, and vindictive.