Trump again tries to curb birthright citizenship, following Supreme Court loss

WASHINGTON — President Donald Trump on Thursday signed two executive orders in his second attempt to deny citizenship to babies born to noncitizens, following the Supreme Court’s defeat this summer of an earlier order to redefine birthright citizenship.

Trump said the Supreme Court ruling was “an unfortunate decision” so “we’re making adjustments” to birthright citizenship, which is included in the U.S. Constitution’s 14th Amendment. 

Both executive orders are likely to face swift legal challenges, possibly all the way to the Supreme Court again.

The Supreme Court in June rejected Trump’s executive order, signed on the first day of his second term, that would deny citizenship to children born to parents who either do not have legal status, or hold temporary legal visas. The justices ruled the executive order violated the 14th Amendment.

One of Thursday’s executive orders seeks to expand the narrow exemptions to birthright citizenship for babies born on U.S. soil. 

White House deputy chief of staff Stephen Miller, who is the chief architect of the Trump administration’s immigration policy, gave an overview of the orders in the Oval Office. 

The Trump administration wants to deny citizenship to children born to parents who belong to groups that have been designated as terrorist organizations; children born to foreign diplomatic staff; and children born in U.S. territories where Congress has not passed a law granting citizenship, which is only American Samoa.

The children of diplomats are already exempt from birthright citizenship, but the executive order aims to expand that exemption to include the children of noncitizen staff. 

Historically, the other exemption to birthright citizenship was meant to apply to Indigenous people who resided in Native nations — part of their tribal governments until Congress in 1924 specifically passed the Indian Citizenship Act to grant birthright citizenship to Indigenous people, regardless of their residence in Native nations. 

Guidance in 30 days

Thursday’s order directs all executive departments and agencies to issue public guidance within 30 days on implementing the executive order.

Birthright citizenship has been a longstanding core principle in the United States, in which nearly any child — regardless of their parents’ immigration status — born on U.S. soil is automatically granted citizenship. 

The text of the clause in the 14th Amendment is: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Birth tourism

The second executive order aims to end birth tourism, which is a term for the practice of foreign nationals traveling to the U.S. only for the purpose of giving birth in order to obtain citizenship for the baby. 

The order directs the secretaries of State and Homeland Security to adopt rules and guidelines to put the order in place. 

Some of those actions can include denying visas to foreign nationals suspected of coming to the U.S. for the sole purpose of having a child.

“If you’re telling a consular officer you’re here as a tourist, but your true purpose and intent is to go to a baby mill and give birth and try to mint an American citizen while you’re here, then you’re committing fraud against the American government,” Miller said. 

The most expansive estimates from U.S. Census Bureau data shows that about 26,000 babies are born annually through birth tourism, compared to more than 3.5 million U.S. births each year overall, according to the Migration Policy Institute, which is a think tank that tracks migration.

‘It’s the same Constitution’

In oral arguments before the Supreme Court, Solicitor General D. John Sauer argued that birthright citizenship incentivized pregnant women to travel to the United States for the purpose of obtaining citizenship. 

The justices pushed back and called the issue of birth tourism “marginal” and pressed Sauer for an answer of how frequently it happened. 

Sauer said “no one knows for sure,” and argued that “we’re in a new world now, … where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.”

But Chief Justice John Roberts rejected that argument. 

“Well, it’s a new world, it’s the same Constitution,” Roberts said.