Commentary

Trump Tries Again on Birthright—This Time With a Scalpel Instead of a Sledgehammer

Posted on by Bill McCarthy

President Trump’s first attempt to end birthright citizenship went down in flames at the Supreme Court. On June 30 the Court ruled 6-3 in Trump v. Barbara that the 14th Amendment’s Citizenship Clause covers children born in the United States to parents who are here illegally or on temporary visas. Chief Justice Roberts made it plain: those children are citizens at birth. The broad executive order signed on Inauguration Day 2025 is dead.

Trump is not finished. On August 6 he signed two new executive orders that try a narrower approach. One targets specific categories the administration claims fall outside the Court’s rule. The other goes after birth tourism directly through the visa system. The question is whether this more surgical effort survives the courts or simply runs into the same constitutional wall.

The New Orders

The first order, “Continuing to Protect the Meaning and Value of American Citizenship,” instructs federal agencies not to recognize citizenship for children of two non-citizen parents in limited circumstances:

  • One or both parents are “alien enemies,” defined to include members of designated Foreign Terrorist Organizations or Specially Designated Global Terrorists.
  • Parents are foreign government employees, diplomatic staff, or lobbyists acting on behalf of foreign governments and enjoying immunity.
  • The parents engaged in a commercial transaction—birth tourism packages or surrogacy arrangements—expressly to ensure the mother is present in the United States for the purpose of giving birth and securing citizenship for the child.
  • The birth occurs in a U.S. territory where federal statute does not already confer citizenship (this last piece would require congressional action to have real effect).

The second order, “Ending Birth Tourism,” is more operational. It directs the Secretaries of State and Homeland Security to use existing visa and entry authorities to deny nonimmigrant visas, revoke travel authorizations, bar entry, and remove foreign nationals who travel to the United States primarily to give birth. Birth tourism is defined as entry on a temporary visa for that purpose, or efforts to facilitate such entry. The administration frames it as stopping a commercial exploitation of American citizenship.

Why the First Attempt Failed

The January 2025 order tried to rewrite the long-settled understanding of “subject to the jurisdiction thereof.” The Court rejected that reinterpretation. It held that the clause covers nearly everyone born on U.S. soil except the narrow historical exceptions—children of foreign diplomats and members of invading armies. Illegal presence or temporary visa status does not create an “extraterritorial fiction” that removes a child from U.S. jurisdiction.

Trump’s new orders deliberately lean on those historical exceptions and try to stretch them to modern categories: designated terrorists as “alien enemies,” commercial birth tourism as a form of fraud, and foreign agents as equivalent to diplomats. The administration is betting that the Court left enough room for targeted enforcement.

Will It Work This Time?

The birth tourism order has the better shot. Presidents have broad statutory authority over visas and the admission of nonimmigrants. Denying tourist visas to pregnant women who cannot show a legitimate temporary purpose, or who are linked to known birth-tourism operators, fits within existing immigration law. Administrative agencies can tighten scrutiny, demand stronger evidence of non-immigrant intent, and revoke visas when the purpose is clear. Courts generally defer to the executive on consular and border decisions. This piece can reduce the practice without needing to redefine citizenship itself.

The citizenship-denial order faces steeper odds. Expanding “alien enemy” to every member of a modern designated terrorist group, or treating foreign lobbyists the same as accredited diplomats, invites immediate lawsuits. So does the commercial-transaction prong. Lower courts, and eventually the Supreme Court, will test whether these categories truly match the narrow historical exceptions the justices just reaffirmed. Given the June ruling’s breadth and the Court’s recent willingness to check executive overreach on citizenship, significant portions of the order are likely to be enjoined.

Partial success is the realistic outcome. Birth tourism can be meaningfully curtailed through visa policy and enforcement. Broader attempts to withhold citizenship documents from children of illegal immigrants or ordinary temporary visitors remain blocked by the Constitution. Trump has adjusted tactics after the Court’s rebuke. The Constitution has not adjusted with him.

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