The U.S. Supreme Court recently dismissed President Trump’s attempt to redefine birthright citizenship through an executive order. The court confirmed that the Constitution guarantees citizenship to children born in the U.S., irrespective of their parents’ immigration status. Yet, Trump issued a new executive order, aiming to exclude certain newborns based on parental status.
Initially, Trump’s order titled “Protecting the Meaning and Value of American Citizenship,” sought to exclude children of temporary visa holders and illegal immigrants. This move was invalidated by a 6-3 Supreme Court verdict in the Trump v. Barbara case. Chief Justice John Roberts clarified that any child born on American soil and under U.S. law is a citizen. In response, Trump criticized the court’s decision, calling it a “miscarriage of justice,” though it upholds a century-old precedent.
Despite the court’s ruling, Trump issued another order, misleadingly named “Continuing to Protect the Meaning and Value of American Citizenship.” His new order proposes broader restrictions than those the court struck down, including creating new exceptions for categories of non-citizen children, bypassing the court’s defined exceptions.
Moreover, Trump introduced an additional order targeting “birth tourists,” those traveling to the U.S. specifically for childbirth, as a strategy to deny visas. The Supreme Court’s stance is that the 14th Amendment grants citizenship to all born in the U.S. under its jurisdiction, except for a few specific cases like foreign diplomats’ children or wartime enemies’ children.
Trump interpreted the court’s reference to “extraterritorial fiction” to introduce broader exclusions. He aims to exclude children based on his definition of extraterritoriality, claiming their parents fit this description.
Trump’s orders seek to affect children born through surrogacy linked to non-citizen parents, particularly commercial surrogacy arrangements. However, the impact may be minimal. For instance, the CDC indicates fewer than 10,000 surrogacy-related births occurred in 2022, with only a fraction involving international parents.
The most controversial aspect of Trump’s order targets children of “alien enemies,” based on parental affiliation with terrorist organizations. Detecting and confirming such affiliations at birth is highly complex. This could result in retroactively stripping citizenship from individuals years after birth, rendering them stateless and deportable.
The Constitution prohibits penalizing individuals for their forebears’ acts. Trump’s order, however, risks lifelong consequences for innocent children due to their parents’ alleged activities.
Steven Lubet, Emeritus Professor at Northwestern University Pritzker School of Law, notes the executiveness of Trump’s orders as disingenuous, showy, and relentlessly punitive.
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