President Trump's First Birthright Move Post-SCOTUS is Encouraging

President Trump issued two new executive orders regarding automatic birthright citizenship in an attempt to clean up the mess made by Chief Justice Roberts in the ruling in Trump v. Barbara. While a narrow majority, made up by mostly the far-left side of the Court (Justices Sotomayor, Kagan, and Jackson were the majority of the majority opinion), ruled that the 14th Amendment requires automatic birthright citizenship regardless of the legal status of parents, they did affirm some exceptions. Namely, they agreed that children born to parents working for foreign government interests and alien invaders could not produce citizens automatically at birth by virtue of simple presence inside America. But the majority opinion did not define these categories for purposes of formalizing a policy to enforce the expressed judgment. Into the breach steps the President with two executive orders intended to formalize enforcement of the exceptions outlined by the Court. 

Executive Order 1: ENDING BIRTH TOURISM

Birth tourism is defined in the E.O. as:

“(a)  the entry of any foreign national into the United States via a nonimmigrant [temporary] visa for the purpose of giving birth on American soil; or

“(b)  any effort by any foreign national to facilitate the entry of any foreign national into the United States via a nonimmigrant visa for the purpose of giving birth on American soil.”

Critics are already complaining that this action does not address the exceptions enumerated by the SCOTUS. In fact, the far-left majority opinion does not address issues like birth tourism at all. Only Justice Thomas, in his dissent, mentions the problem. 

But this E.O. is best understood as a mitigating action to limit the consequences of the Supreme Court’s folly. Nothing in the Supreme Court opinion stated that foreigners have a right to enter the United States for any reason, let alone specifically to give birth to U.S.-citizen children. It merely stated that people who were lucky enough to find themselves in the United States when they gave birth would produce a citizen. The obvious solution, then, is to limit admission to those seeking to exploit the Supreme Court’s malfeasance. 

It is important to keep in mind that birth tourism is already illegal. President Trump is simply making a targeted effort to combat it directly after the larger effort to limit automatic birthright citizenship was defeated by the far-left justices. There is no nonimmigrant visa created by Congress that allows aliens to come to the United States for the purpose of giving birth. In other words, the birth tourism industry is built on immigration fraud from the jump. 

The E.O leaves specific actions to the discretion of the Secretaries of State and Homeland Security. It does, however, suggest potential actions: 

“Such actions may include, within the Secretaries’ respective discretion and authority, appropriate action to prevent the entry into the United States of, or the granting of any visa or other travel authorization to, any alien entering or attempting to enter the United States for the purpose of engaging in birth tourism; revoking the visa or travel authorization and permanently barring entry of any alien who enters or attempts to enter the United States for the purpose of engaging in birth tourism; denial of entry to, or removal of, any alien who previously engaged or plans to engage in birth tourism; or other appropriate action against entities, organizations, or individuals, within or outside of the United States, responsible for facilitating or enabling birth tourism in any manner.”

The future actions of the Departments of State and Homeland Security will determine the impact of this order, but the birth tourism industry should be sweating. 

Executive Order 2: CONTINUING TO PROTECT THE MEANING AND VALUE OF AMERICAN CITIZENSHIP

This E.O. states:

“On June 30, 2026, the Supreme Court decided in Trump v. Barbara, 609 U.S. ___, 146 S. Ct. 2438, 2449 (2026), that the Citizenship Clause of the Fourteenth Amendment to the United States Constitution extends the privilege of citizenship to children born to parents in the United States “for whom no extraterritorial fiction applie[s].”  This order identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court.”

Plainly, the job of the President is to enforce the law, including Supreme Court rulings. The Supreme Court’s far-left Justices acknowledged limits to automatic birthright citizenship. They explicitly affirmed that the children of aliens subject to the “fiction of extraterritoriality” are not U.S. citizens at birth. They cited the fiction of extraterritoriality to explain why foreign diplomats and Native American “Indians” were not considered to be “subject to the jurisdiction of” the United States. (Foreign diplomats are considered to be living on the soil of their home country, despite being physically present in the territorial United States, while Indians were members of tribal nations with their own laws, despite being physically present in the territorial United States.) Similarly, the majority agreed that the children of foreign invaders who may occupy land in the territorial United States are not U.S. citizens at birth because the land they occupy is outside the jurisdiction of the United States. In all three cases, these aliens’ extraterritoriality is a fiction because they are, in fact, within U.S. territory.

This second E.O. is the first attempt at formalizing a process and policy for defining more broadly which aliens are subject to the fiction of territoriality, as articulated by the Supreme Court, and so not eligible for automatic birthright citizenship. The E.O. identifies these exceptions:

“(a)  either parent of that person is an alien enemy, defined to include any member of a designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), as amended;

“(b)  either parent of that person is a foreign government employee, defined to include:

“(i)    ambassadors;

“(ii)   persons employed by a foreign embassy or consulate who are nationals of that foreign country;

“(iii)  persons employed by a foreign government in an official capacity; and

“(iv)   persons employed by an international organization that possess international-organization immunity;

“(c)  either parent of that person engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship, to include:

“(i)   when the parent(s) of the person engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth; or

“(ii)  when the parent(s) engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth;

“(d)  the person is born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.”

President Trump is calling the far-left majority’s bluff. The naive Justices did not write about or grapple with the scope of their “fiction of extraterritoriality” exception, but it is difficult to argue that aliens who entered illegally and are express members of designated Foreign Terrorist Organizations (FTO) are not invaders. 

Similarly, while the Court freely admits that foreign dignitaries are not entitled to U.S. citizenship for their children, they did not grapple with the scope of the exception. A foreign diplomat has foreign allegiance, clearly, and is not subject to U.S. jurisdiction. Why would the same not also apply to every employee that diplomat brings with him to America? This E.O. says it does. 

The birth tourism exception is the most controversial. However, common law acknowledges that a person cannot benefit from his crime. We do not allow children to murder their parents and receive the life insurance. Birth tourists are attempting to gain citizenship for their children through willful immigration fraud. Just as we can denaturalize an alien who committed fraud during the naturalization process, so we should be able to deny birthright citizenship when the alien parents committed fraud to obtain birthright citizenship.

States Take Heed

These two Trump Executive Orders provide a plausible path for states that wish to limit the damage of the Trump v. Barbara decision. States should criminalize birth tourism and revoke business licenses from any entities engaging in it. They also should refuse to issue birth certificates to children born to individuals barred from citizenship by the second E.O. 

States should develop a formal process to require aliens giving birth within their state to provide proof that they do not fall within an enumerated exception to birthright citizenship. Many illegal aliens destroy their foreign identification documents prior to illegally entering the United States. They do this so the U.S. government will not know who they are or their country of origin. 

This deception would backfire if states created a process where the aliens have the burden of proof to show they are not foreign government employees or members of designated terrorist organizations. Without official identification documents, it would be extremely difficult for aliens to prove they qualify for birthright citizenship for their children. 

As part of this identification process, states could require illegal aliens to provide proof of registry with the U.S. government, as required by current federal law. They could also inform illegal aliens applying for birth certificates for their U.S.-born children that all information provided will be shared with immigration enforcement authorities for the purpose of verification and potential future enforcement actions. 

The key is that states also are bound by Supreme Court precedent and have enforcement obligations as well. Helping to define and enforce the exceptions at the state level is crucial.