President Donald Trump's administration has issued new executive orders aiming to restrict birthright citizenship, focusing on narrower legal arguments that some experts believe may have stronger legal footing than previous efforts. These orders target children born to members of foreign terrorist organizations and individuals like foreign government employees.
One executive order, signed on August 6, directs federal agencies to withhold documents recognizing citizenship for certain children born when neither parent is a U.S. citizen. This includes cases where parents are members of designated foreign terrorist organizations or are employees of foreign governments. Legal scholars from conservative organizations such as the Manhattan Institute, America First Legal, and the America First Policy Institute suggest these new orders leverage long-standing, recognized exceptions to birthright citizenship.
These exceptions, historically acknowledged by the Supreme Court, include children of diplomats and, more controversially, children of those considered enemies of the state during periods of hostility. Chad Mizelle, senior fellow at the America First Policy Institute, stated that situations involving individuals who are in the U.S. contrary to law and intending harm, such as terrorists, have historically been recognized as exceptions to birthright citizenship claims. Ilya Shapiro, director of constitutional studies at the Manhattan Institute, echoed this sentiment, noting that the new orders target exceptions related to allegiance to a foreign government or being an “invader.”
However, some legal experts express skepticism. David Bier, director of immigration studies at the Cato Institute, argues that the president’s attempt to redefine who constitutes an “alien enemy” without congressional action places the administration on legally precarious ground. Bier contends that Congress, not the executive branch, holds the ultimate authority in establishing who is subject to U.S. jurisdiction, calling the order an “unprecedented” expansion of executive power.
Amanda Frost, a professor at the University of Virginia School of Law, pointed out that the Supreme Court’s 1898 decision in United States v. Wong Kim Ark specified exceptions for children of enemies “occupying” territory, suggesting the current order might not apply to terrorists merely residing in the U.S. Frost, along with Bier, believes the new executive order could be ruled unconstitutional.
The administration's latest move is already facing legal challenges. Groups that contested Trump’s initial order argue that the new executive actions unlawfully create exceptions to birthright citizenship, conflicting with the Supreme Court’s previous ruling. The order is set to take effect on September 6, with legal proceedings already underway, including an injunction request scheduled for August 28.
Separately, a second executive order issued on the same day targets birth tourism. It directs the State Department and Department of Homeland Security to deny visas or pursue removal actions against individuals believed to be entering the U.S. for the purpose of giving birth. Gene Hamilton, co-founder and president of America First Legal, described this order as being on “sound, solid legal footing,” relying on provisions within the Immigration and Nationality Act that grant authority to control visa issuance.
Critics, such as Debu Gandhi, senior director of immigration policy at the Center for American Progress, argue that existing regulations already provide tools to combat birth tourism and that no new executive orders are necessary. Gandhi asserted that the Trump administration has consistently sought to bypass constitutional language on citizenship.
If these executive actions are ultimately unsuccessful, supporters of further birthright citizenship restrictions might consider legislative action or pursuing a constitutional amendment, a process requiring significant state-level approval.