President Trump remains unwilling to acknowledge the U.S. Supreme Court’s decision on birthright citizenship. The court’s 6-3 ruling confirmed that children born in the U.S. to non-citizen parents are indeed U.S. citizens. Despite this ruling, Trump issued a new executive order seeking to restrict this citizenship.
The initial executive order, titled “Protecting the Meaning and Value of American Citizenship,” aimed to exclude children of temporary visa holders and undocumented individuals. Chief Justice John Roberts, in the case Trump v. Barbara, made it clear: “A child born on American soil and subject to American law” is an American.
Trump’s response to the ruling was one of outrage. He called the court’s decision “absolutely insane” and a “miscarriage of justice.” Yet, he did not pursue a rehearing, possibly understanding it would not succeed.
Instead, Trump introduced a new order under the name “Continuing to Protect the Meaning and Value of American Citizenship.” This new directive attempts to redefine the scope of exceptions to the Supreme Court’s ruling.
Additionally, Trump introduced a separate order targeting “birth tourists.” In Trump v. Barbara, the 14th Amendment’s guarantee to citizenship for those born in the U.S. was emphasized, with exceptions only for those outside the jurisdiction of U.S. law, such as children of foreign diplomats.
Trump exploited the concept of “extraterritorial fiction” to introduce new categories for exclusion, beyond the court’s narrow exceptions. His approach was more rhetoric than substance, as pointed out by journalist Joe Patrice.
One of the new categories targets children born to non-citizen parents involved in surrogacy arrangements in the U.S. The Centers for Disease Control and Prevention reports under 10,000 embryo transfer cases in 2022, with a smaller international component.
Another contentious exclusion involves children of parents linked to a Foreign Terrorist Organization. This provision raises concerns about retroactive denial of citizenship, potentially affecting individuals unaware of their parents’ status.
Denial of citizenship could leave American-born individuals stateless, vulnerable to deportation. This situation underscores how these restrictions can harm innocent children for acts they didn’t commit.
The new executive order has been criticized as disingenuous, performative, and vindictive. It contrasts with constitutional principles that prevent punishing children for parental actions.
Steven Lubet is the Williams Memorial Professor Emeritus at Northwestern University Pritzker School of Law.