Trump’s New Executive Order on Birthright Citizenship

President Trump has again targeted birthright citizenship following a recent loss in the U.S. Supreme Court. He has issued a new executive order aiming to deny citizenship to specific newborns, targeting those he perceives as having the ‘wrong’ parents. This follows a previous failed attempt when a 6-3 Supreme Court majority invalidated his order on the same issue.

Chief Justice John Roberts, in the case Trump v. Barbara, emphasized that children born in the U.S. under American law are citizens. Trump fiercely criticized this ruling as a ‘miscarriage of justice’ and hinted at seeking reconsideration but then chose not to pursue this.

The fresh executive order, though presented as protective of American citizenship, extends beyond Supreme Court definitions. It incorporates more categories of non-citizen children than the original ruling allowed, challenging the permanence of the court’s decision.

Moreover, Trump’s order denies visas to ‘birth tourists.’ The Supreme Court notes the 14th Amendment grants birthright citizenship to all born in the U.S. under its jurisdiction, except for those physically out of reach of U.S. law. Trump’s order introduces new exceptions based on subjective parental criteria, co-opting terms like ‘extraterritorial fiction’ to exclude children due to their parents’ perceived status.

One exclusion targets birth tourism by barring citizenship for children of surrogates involved in commercial arrangements in the U.S. The CDC recorded under 10,000 such surrogacy procedures in 2022, making this impact minimal despite Trump’s intentions. Another exclusion affects children of parents labeled ‘alien enemies,’ encompassing potential members of designated Foreign Terrorist Organizations.

This exclusion’s long-term uncertainty can render American-born individuals stateless, without passports and subject to deportation, even years later, should a parent’s past, unknown to the child, be scrutinized by immigration authorities. The Constitution disallows ‘corruption of blood’ punishment for treason, yet Trump seems determined to penalize innocent children based on their parents’ actions.

In summary, Trump’s new order is disingenuous, performative, and punitive, threatening citizenship and stability for many. Steven Lubet serves as the Williams Memorial Professor Emeritus at Northwestern University Pritzker School of Law.