Trump’s New Executive Order on Birthright Citizenship Faces Criticism

President Trump struggles to accept his loss in the U.S. Supreme Court regarding birthright citizenship. He recently released an executive order attempting to deny citizenship to certain newborns, despite the court’s ruling that the Constitution ensures citizenship for children born to parents unlawfully or temporarily in the U.S.

Earlier, the Supreme Court had nullified his executive order, “Protecting the Meaning and Value of American Citizenship,” through a 6-3 decision. This order sought to exclude children of temporary visa holders and unlawful entrants. Chief Justice John Roberts, in Trump v. Barbara, stated that a child born on U.S. soil under American law is a citizen. Trump denounced the decision as “absolutely insane” yet did not pursue reconsideration before the deadline.

Instead, Trump issued a new order titled “Continuing to Protect the Meaning and Value of American Citizenship.” This order aims to apply the court’s ruling by expanding non-citizen child categories beyond those earlier defined. Another order targets “birth tourists” by potentially denying them visas.

The Supreme Court emphasized that the 14th Amendment grants birthright citizenship to all born in the U.S. under its jurisdiction, except for those beyond American law’s reach, like enemy children in wartime or foreign diplomats’ children. Trump used a term— “extraterritorial fiction”— to create new exceptions, a move journalist Joe Patrice criticized as a rhetorical trick.

One novel category targets birth tourism, denying citizenship to children if the non-citizen parent engaged in a commercial surrogate transaction. While this may appeal to Trump supporters, it affects a small number of children, with CDC data indicating under 10,000 surrogate embryo transfers in 2022.

Another exclusion applies to children with a parent in a Foreign Terrorist Organization. Determining these cases at birth is difficult, leading to potential denials years later, potentially rendering U.S.-born individuals stateless and at risk of deportation. Critics note this targets innocent children for their parents’ crimes, contrary to constitutional protections against “corruption of blood” punishments.

This executive order embodies Trump’s style: misleading, symbolic, and harsh.

Steven Lubet, an emeritus professor at Northwestern University Pritzker School of Law, provides insight into this ongoing issue.