Two executive actions merge unconstitutional clauses with performative theatrics.
President Donald Trump signed two executive directives on Thursday that aim to constrain birthright citizenship, but only in a narrow way. This follows a little more than a month after the Supreme Court rejected his broader bid to curtail birthright citizenship. The first order narrows eligibility by listing certain groups whose children, according to the administration, would not qualify for citizenship at birth; the second targets “birth tourism.” The White House asserts these measures will “protect the meaning and value of American citizenship.”
In practice, the orders are unlikely to accomplish much, because they mix unconstitutional elements with a theatrical display.
Turning to the first directive, it states that children will not obtain birthright citizenship if either parent has been designated an “alien enemy” by the government, is a “foreign government employee,” or has “engaged in a commercial transaction” to obtain birthright citizenship for their child. It also excludes children “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.”
In Trump v. Barbara, the Supreme Court affirmed birthright citizenship. “Citizenship, then and now, was the right to have rights—to freely participate in our political community,” the Court concluded. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’” Those “subject to the jurisdiction” of the United States and its laws, as the 14th Amendment reads, are thus born citizens, the majority ruled.
That interpretation inherently includes people whose parents may have engaged in questionable or outright reprehensible conduct, whether they arrived with the intention of engaging in birth tourism or are allegedly an alien enemy. Some individuals “have committed horrendous crimes,” writes attorney Ilya Somin at The Volokh Conspiracy. “But that is no reason to visit the sins of the parents upon the children. If a murderer or a rapist has a child born on U.S. soil, the child is entitled to birthright citizenship, notwithstanding the reprehensible behavior of the parents.”
Omitting children of all “foreign government employee[s],” as defined by the order, would also clash with the Court’s recent ruling. This is not, however, a sweeping change. The order also references children of “persons employed by an international organization that possess international-organization immunity” and “ambassadors.” The inclusion seems odd, given that diplomatic immunity already excludes those parents’ offspring from receiving birthright citizenship, because they are not “subject to the jurisdiction” of the United States.
That leaves those born in a U.S. territory or in territorial waters, where citizenship is not granted by federal statute. It appears this concern principally touches American Samoa, where birthright citizenship is not conferred as it is elsewhere. (Children born there are classified as “non-citizen nationals.”)
Nevertheless, the less meaningful piece is the second directive: the one the White House describes as “delegating presidential authorities to the Secretary of State and Secretary of Homeland Security and directing them to halt the practice of birth tourism.” Birth tourism—when some women travel to the United States solely to give birth—remains a contentious issue. This helps explain why the United States already possesses the power to deny a visa if the apparent purpose of travel is to give birth, and why authorities have prosecuted individuals—in the Biden administration as well—for operating birth-tourism schemes.
“It’s a political stunt to the extent that it addresses the issue of so-called ‘birth tourism’ that’s already covered by federal law,” said Lawrence Guttentag, a law professor at Stanford and Yale, in an interview with NBC. “So what he does isn’t adding anything to what the government is already authorized to do.”
