Less than two months after the U.S. Supreme Court ruled his executive order on birthright citizenship to be unconstitutional, President Donald Trump has issued not one but two new executive orders on birthright citizenship that largely retread the same illegal grounds that the Supreme Court already rejected in Trump v. Barbara.
Is this just a futile outburst from a consummate sore loser? Or does Trump actually stand a chance of faring any better in court this time around?
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Trump’s original 2025 executive order purported to deny the constitutional guarantee of birthright citizenship to all U.S.-born children whose parents were either unlawful immigrants or lawful temporary visitors. His pair of new executive orders basically attempts a sort of do-over on the latter group, now purporting to deny birthright citizenship to several categories of U.S-born children whose parents are lawfully but temporarily present on American soil, such as “when the parent(s) of the person engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth.”
The trouble for Trump is that the Supreme Court already reviewed and repudiated the same sort of arguments against so-called “birth tourists.”
During the April 1st oral arguments in Trump v. Barbara, for example, Solicitor General John Sauer asserted that “birth tourism” was the cause of all sorts of modern problems that “the 19th century Framers of this amendment” could “not possibly” have wanted to permit when they drafted the 14th Amendment and its guarantee of birthright citizenship. But Chief Justice John Roberts responded by pointing out that the Trump administration’s emphasis on modern policy concerns does not alter the original meaning of the Constitution. “You do agree,” Roberts told Sauer, “that that has no impact on the legal analysis before us?”
Sauer struggled for a little bit to regain his footing after getting hit with that one from the chief justice, before finally arguing back to Roberts that “we’re in a new world now,” one “where 8 billion people are one plane ride away from having a—a child who’s a U.S. citizen.”
“Well, it’s a new world,” Roberts promptly retorted. “It’s the same Constitution.”
The Supreme Court reiterated that point about an unchanging Constitution in Trump v. Barbara. “Children born of parents unlawfully or temporarily present in the United States,” the Court held, “satisfy both elements of the Citizenship Clause [of the 14th Amendment]: they are ‘born…in the United States’ and ‘subject to the jurisdiction thereof.’ Under the Constitution, they are citizens at birth.”
That language from the Court’s holding fully covers the U.S.-born children of “birth tourists,” who are “subject to the jurisdiction” of the U.S. while present on U.S. soil and therefore “citizens at birth.” Nothing in Trump’s new flurry of executive action does anything to change those legal facts.
The first lawsuit against this new pair of executive orders was filed last week against the Trump administration. And as Amy Howe noted at SCOTUSblog, “lawyers for the plaintiffs who successfully challenged Trump’s earlier order restricting birthright citizenship” were the ones who filed it: “Lawyers from the American Civil Liberties Union and other civil rights groups urged U.S. District Judge Joseph Laplante to clarify that the new order goes beyond the limited exception – for foreign diplomats – to birthright citizenship that the Supreme Court reaffirmed in its June 30 decision in Trump v. Barbara.”
If this case, or one like it, does eventually reach the Supreme Court, I see little reason to think that Trump will fare any better than he did back in June. If anything, Trump’s rather obvious disregard for the Court’s recent decision may only doom his latest case even more.
