Trump's New Executive Orders on Birthright Citizenship Target Birth Tourism

<p>Legal experts indicate that President Donald Trump’s recent efforts to limit birthright citizenship and address birth tourism may have a stronger legal basis than his previous attempts. Following a Supreme Court ruling in June that affirmed the citizenship rights of children born in the U.S. to parents who are unlawfully or temporarily present, Trump issued two new executive orders that take a more focused approach to these issues.</p><p>The first executive order, signed on August 6, instructs federal agencies to withhold citizenship recognition for certain children born in the U.S. when neither parent is a U.S. citizen. This includes children whose parents are associated with designated foreign terrorist organizations, foreign government employees, or those involved in fraudulent activities aimed at obtaining birthright citizenship.</p><p>Experts from organizations such as the Manhattan Institute, America First Legal, and the America First Policy Institute argue that Trump’s new order is more narrowly defined than his previous efforts and is based on established exceptions to birthright citizenship that they believe could be applicable in this context.</p><p>Chad Mizelle, a senior fellow at the America First Policy Institute and former chief of staff at the Justice Department, stated, "The Supreme Court has long recognized that there are exceptions to the 14th Amendment's birthright citizenship clause for the aliens who are considered children of invading armies or the children of ambassadors." He noted that individuals associated with terrorist organizations could fall under this exception.</p><p>The Supreme Court case United States v. Wong Kim Ark, decided in 1898, acknowledged exceptions to birthright citizenship for children of diplomats and those born to alien enemies during a hostile occupation. Trump's order contends that members of foreign terrorist organizations may qualify as alien enemies.</p><p>Ilya Shapiro, director of constitutional studies at the Manhattan Institute, commented that while the Supreme Court ruled against restricting birthright citizenship to children of individuals present in the U.S. temporarily or illegally, the new executive order references classic exceptions to birthright citizenship.</p><p>Conversely, David Bier, director of immigration studies at the Cato Institute, expressed concerns about the legality of the president redefining what constitutes an alien enemy without Congressional approval. He stated, "Congress ultimately establishes what it means to be subject to U.S. jurisdiction," arguing that the president's unilateral authority to determine who falls under U.S. laws represents a significant overreach of executive power.</p><p>Amanda Frost, a law professor at the University of Virginia, noted that Wong Kim Ark specifies that only children of enemies occupying U.S. territory are excluded from citizenship at birth, suggesting that Trump's order may not apply to terrorists residing in the U.S. She indicated that while the administration could potentially broaden the definition of a diplomat, this could complicate criminal prosecutions.</p><p>Both Frost and Bier believe that the new executive order should be deemed unconstitutional. There are also concerns regarding legal standing for those who might challenge Trump's order, as plaintiffs must demonstrate a concrete injury caused by the defendant.</p><p>Trump's new order is already facing legal challenges, with groups that previously contested his initial order now arguing that the new one unlawfully creates exceptions to birthright citizenship that conflict with the Supreme Court's June ruling. The order is set to take effect on September 6, with a Maryland judge scheduled to hear an injunction request on August 28, and a related motion pending in New Hampshire.</p><p>The second executive order, issued concurrently with the first, directs the State Department and the Department of Homeland Security to deny travel visas or pursue removal actions against individuals believed to be in the U.S. for birth tourism purposes. Birth tourism refers to the practice of noncitizens entering the U.S. while pregnant to secure citizenship for their child.</p><p>Gene Hamilton, co-founder and president of America First Legal, described the second order as having a solid legal foundation, asserting that it relies on Section 215(a) of the Immigration and Nationality Act to impose conditions on visa issuance.</p><p>Critics argue that the administration already possesses tools to combat birth tourism, as State Department rules since 2020 have allowed consular officers to deny visitor visas if they suspect the applicant's primary purpose is to give birth in the U.S. to obtain citizenship for their child.</p><p>Debu Gandhi, senior director of immigration policy at the Center for American Progress, stated, "No new executive orders are required for the federal government to go after birth tourism operators or deny fraudulent visa applications," asserting that the Trump administration has attempted to circumvent the Constitution's clear language on citizenship.</p><p>If the administration's latest efforts are unsuccessful, proponents of limiting birthright citizenship may turn to Congress or seek a constitutional amendment, which would require approval from three-fourths of the states.</p><p>Shapiro noted that the administration is on solid ground but suggested that a more targeted approach from the outset might have prevented the Supreme Court's initial ruling against them.</p><p>The White House did not respond to a request for comment regarding this matter.</p>