Last month, we wrote about the Supreme Court's decision in Trump v. Barbara, which preserved birthright citizenship in a 6-3 ruling but ultimately left the constitutional picture more complicated than the vote breakdown suggests. On August 6, President Trump signed two new executive orders that continue to test the boundaries of that decision.

The first order addresses a phenomenon known as “birth tourism,” a practice whereby a pregnant woman intentionally travels to the U.S. to deliver her baby so that the child can be a U.S. citizen. According to the Migration Policy Institute, roughly 26,000 births per year fall into this category out of approximately 3.5 million U.S. births annually. This order directs the Secretaries of State and Homeland Security to take appropriate enforcement action against those who do so, including potential visa revocation and bars on reentry. The order also targets operators who facilitate these arrangements. It is worth noting that misrepresenting the purpose of travel to obtain a visa is already a basis for denial or revocation under existing law. The President’s most recent order directs agencies to prioritize and formalize enforcement along those lines.

The second order instructs federal agencies not to recognize citizenship for children born in the United States when neither parent is a citizen and at least one parent falls into one of several enumerated categories: foreign government employees with official status or diplomatic immunity, members of designated foreign terrorist organizations, or parents who entered into a commercial transaction to secure a U.S. birth. The order also addresses children born in certain U.S. territories where citizenship is not conferred by federal statute.

The order expressly grounds itself in the Supreme Court's language from Trump v. Barbara, which held that the Citizenship Clause of the Fourteenth Amendment extends to children born to parents for whom no extraterritorial fiction applies. That principle is not new. The Court recognized as far back as United States v. Wong Kim Ark (1898) that children born to foreign diplomats fall outside the scope of birthright citizenship because their parents are not fully subject to U.S. jurisdiction in the relevant sense. The new order identifies additional categories the administration views as similarly situated.

Whether the courts will agree is a separate question, and legal challenges have already been signaled. The order is narrower in scope than the one the Supreme Court struck down in June, but narrower does not necessarily mean constitutional. Agencies have 30 days to issue public implementation guidance.

For families, employers, and others with questions about how these orders may affect them, the practical effects remain to be seen as litigation continues to develop. 

HunterMaclean’s Immigration team will continue to monitor these developments closely.