The topic of discussion for this Constitution Monday concerns birthright citizenship, a topic that is once again in the news. President Donald Trump is trying to do all that he can to stop foreigners from coming to America and particularly those who are coming only to have a baby on American soil
Trump lost his first case at the Supreme Court when the court ruled in June that babies born on American soil have birthright citizenship. The loss did not stop Trump, who “issued two new executive orders seeking to limit avenues for birthright citizenship in the United States.” In her article in the Deseret News, Lauren Irwin explained the new orders as follows.
The
two orders appeared to try to find a way around the court’s ruling that struck
down his previous executive order attempting to end birthright citizenship all
together.
After
receiving the setback from the justices, Trump vowed to change the
constitutional guarantee another way.
He
was accompanied by White House deputy chief of staff for policy Steven Miller
in the Oval Office as he signed the new executive orders: one that puts limits
on birthright citizenship for children of embassy employees and another on
birth tourism.
Scholars
are divided about whether his orders will be allowed to go into effect and
advocates are questioning the legality, just as they did in January 2025.
But
what do Trump’s orders actually say, and will they fail legal scrutiny like the
last one?
The birthright citizenship executive orders
The
first order, titled “Continuing to Protect the Meaning and Value of American
Citizenship,” looks to exclude babies born to employees working for foreign
governments, meaning embassy or consulate staff who aren’t U.S. citizens.
The
long-standing rule was that children born in the U.S. to accredited ambassadors
or diplomats didn’t receive birthright citizenship because their parents are
not subject to U.S. jurisdiction – which was the key question before the
Supreme Court. However, Trump’s order covers a broader number of people, not
just diplomats.
Trump’s
new order expands the ban on birthright citizenship to all foreign government
employees living in the United States.
The
order raises legal questions because the Trump administration argues those
people aren’t “subject to the jurisdiction” of the United States under the 14th
Amendment, but others argue that the diplomatic exception was a very narrow
avenue to deny birthright citizenship to begin with and cannot be expanded.
The
order also targets children of members of foreign terrorist groups and babies
whose parents are engaged in “fraudulent activity” to gain citizenship in the
country.
The
second executive order, titled “Ending Birth Tourism,” directs the secretary of
state and the secretary of homeland security to deny visas to anyone suspected
of engaging in birth tourism.
While
the exact scale of birth tourism is unclear and the number of children born to
foreign nationals in the United States was less than 10,000 in 2024, the order
is looking to end or limit the practice of pregnant women who say they’re
coming to the U.S. for another reason in order to give birth so their child can
receive U.S. citizenship under the constitutional guarantee….
Trump’s
order will likely face legal challenges, but still, it targets a very small
number of children born in the U.S. annually, since the Centers for Disease
Control and Prevention estimates 3.6 million babies were born in 2024.
Trump
said when signing the orders that people were building businesses around birth
tourism and birthright citizenship.
“They’re
buying their way in, and we’re not going to let it happen,” he said, adding, “We
look very heavily at denying visas to people that we have reason to believe are
coming here for that purpose.” …
Scholars
are divided over whether the courts will allow Trump to amend birthright
citizenship and birth tourism.
It’s
potentially legal to expand the category of foreign diplomats not being
included but it also would give them significant immunity from U.S. law, Amanda
Frost, a University of Virginia law professor, told Reuters….
The
American Civil Liberties Union and other advocacy groups filed a motion last
week asking a federal judge to block the enforcement of the two orders.
They
argue Trump can’t circumvent the Supreme Court’s ruling since the justices
already confirmed the 14th Amendment guarantees and the specific “subject
to the jurisdiction” language.
Since
the administration deliberately narrowed the language of the birthright
executive order, courts will have to decide if the foreign government employees
and birth tourists fit within the historical framework of the jurisdiction
clause.