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No, that didn’t actually happen, but it is ripe for the Babylon Bee.
In reality, the ACLU has filed a “motion to clarify the preliminary injunction” in Barbara v. Trump asking the court to rule that children of aliens who are members of foreign terrorist organizations, including declared Alien Enemies, are birthright citizens.
Indeed, the danger of that asserted authority is heightened because the scope of the purported exception is so unclear. The Order says that “alien enemy” is “defined to include” members of certain groups designated as terrorist organizations by the Administration. EO2 § 2(a) (emphasis added). But “include” does not mean “limited to.” And this Administration has already demonstrated a willingness to use extremely loose and unfounded criteria to designate individuals as “alien enemies” purportedly under the Alien Enemies Act. See Perla Trevizo, et al., Now That They’re Free, ProPublica (July 30, 2025), https://www.propublica.org/article/venezuelan-men-cecot-interviews-trump (describing the role of ordinary tattoos in the Administration’s designations under the Act). That demonstrated track record is all the more reason to protect the class from this unlawful Order.
The Supreme Court ducked the Alien Enemies Act and invasion issue in AARP v. Trump. I don’t think this case will be quite so simple.
The tougher question is whether any state actually has standing to assert the rights of alien enemies. The number of such individuals are so small, and states will have trouble asserting that any actual loss of funding. This executive order cannot be invalidated in its entirety. Each claim will have to be assessed separately.
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