Trump’s Controversial Attempt to Redefine Birthright Citizenship
President Trump faces significant challenges in accepting the U.S. Supreme Court’s decision regarding birthright citizenship. The court decisively ruled that under the Constitution, children born in the U.S. to parents who are either unlawfully or temporarily present are ensured citizenship. Despite this clear ruling, Trump has issued a new executive order which aims to curtail citizenship rights for certain newborns he deems to have ‘the wrong parents.’
Initially, Trump’s actions against birthright citizenship were struck down by a 6-3 Supreme Court majority. The order, titled ‘Protecting the Meaning and Value of American Citizenship,’ intended to exclude children of temporary visa holders and individuals who entered unlawfully. Chief Justice John Roberts, in the ruling of Trump v. Barbara, emphasized that a child born on U.S. soil under American law is considered a citizen. Trump criticized this result as deeply unjust, though the decision upheld a legal precedent dating back 128 years.
Trump expressed a desire for reconsideration but did not pursue this legally, possibly realizing the slim chance of success. Instead, he issued a defiant new executive order titled ‘Continuing to Protect the Meaning and Value of American Citizenship,’ which misleadingly suggests continuity from previous efforts blocked by the court. This new order tries to extend the Supreme Court decision by adding extra categories of non-citizen children beyond those specified in Trump v. Barbara.
Trump also put forth a separate order to restrict so-called ‘birth tourism.’ The Supreme Court previously highlighted that the 14th Amendment grants citizenship to all born in the U.S. and under its jurisdiction, save for few exceptions like children of hostile occupiers or foreign diplomats. Trump misused the term ‘extraterritorial fiction’ to propose new exceptions for certain children of aliens whom he claims do not qualify for birthright citizenship.
This approach, as noted by journalist Joe Patrice, is a rhetorical maneuver, altering the focus from children directly excluded by the Supreme Court to those allegedly tied by their parents’ status. Trump’s executive order targets children based on their parents’ classification under a newly invented definition of extraterritoriality. These new classifications are seen as heavily symbolic and punitive, delivering severe outcomes for innocent children.
A category aimed at combatting birth tourism denies citizenship to children when a non-citizen parent has engaged in ‘a commercial transaction with a surrogate present in the United States.’ Yet, the real impact is minor. CDC data indicates that embryo transfers involving surrogates numbered under 10,000 in 2022. Furthermore, studies showed that from 2014-2020, only about 1,500 live births per year involved surrogates for international parents.
Another exclusion targets children of an ‘alien enemy,’ including members of designated Foreign Terrorist Organizations. Such ‘alien enemies’ do not disclose themselves at birth, making it challenging to quantify how many children might be affected or to identify them at birth. Citizenship denial is more likely to occur later, potentially thrusting individuals into statelessness long after their birth in the U.S.
This danger lies in the retroactive potential for declaring American-born citizens as stateless, stripping them of passports, and exposing them to deportation despite holding U.S. birth certificates. While no sympathy is afforded to ‘alien enemies,’ their innocent children should not bear the punishment for parental actions. The Constitution bans ‘corruption of blood’ for treason-related punishment, yet Trump seeks to enact lasting harm upon children for their parents’ offenses.
The new executive order embodies Trump’s approach: misleading, performative, and vindictive. Steven Lubet, Professor Emeritus at Northwestern University Pritzker School of Law, offers this analysis.