President Donald Trump is pursuing a new strategy in his battle over birthright citizenship, and some conservative legal experts say the White House may now have a stronger case.
After suffering a major setback at the Supreme Court earlier this summer, the Trump administration has returned with a significantly narrower approach. Instead of broadly challenging citizenship for children born to illegal immigrants and temporary visitors, the president’s latest executive actions focus on specific exceptions and the controversial practice known as birth tourism.
Supporters believe that distinction could make a major difference when the issue returns to federal court.
Critics, however, argue that Trump is still exceeding presidential authority and attempting to create exceptions to the 14th Amendment that the Constitution does not permit.
The dispute is shaping up to become another important test of presidential power, immigration policy and the meaning of American citizenship.
Supreme Court Ruling Forced Trump to Change Course
The latest fight follows a 6-3 Supreme Court ruling in June involving Trump’s earlier attempt to restrict birthright citizenship.
The Court determined that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the 14th Amendment.
That decision represented a significant setback for the administration’s original approach.
But Trump did not abandon the issue.
On Aug. 6, the president signed two executive orders designed to address birthright citizenship and birth tourism through more targeted policies.
The first order instructs federal agencies not to issue documents confirming U.S. citizenship to certain American-born children whose parents are both noncitizens.
The order applies only under specified circumstances, including some cases involving parents connected to designated foreign terrorist organizations, certain foreign-government employees and people allegedly participating in fraudulent arrangements intended to obtain U.S. citizenship for a child.
That narrower focus is now drawing attention from conservative legal experts.
Legal Experts See a Potentially Stronger Argument
Supporters of Trump’s new strategy contend that the Constitution has never treated birthright citizenship as completely unlimited.
The key language appears in the 14th Amendment, which grants citizenship to people born or naturalized in the United States and “subject to the jurisdiction thereof.”
Exactly what that phrase means has been debated for generations.
Chad Mizelle, a senior fellow at the America First Policy Institute and former Justice Department chief of staff, argues that the Supreme Court has historically recognized limited exceptions.
Those exceptions have included children of foreign diplomats and, under certain circumstances, children connected to hostile foreign forces.
The administration is attempting to build its latest policy around those established legal principles rather than challenging birthright citizenship across the board.
That could give Trump’s lawyers a different argument than the one the Supreme Court rejected earlier.
An 1898 Supreme Court Case Takes Center Stage
Much of the dispute could ultimately revolve around a Supreme Court decision handed down more than a century ago.
In United States v. Wong Kim Ark, decided in 1898, the Court established one of the most important precedents involving citizenship for children born on American soil.
The decision strongly protected birthright citizenship while also recognizing limited historical exceptions, including children of foreign diplomats and children of hostile forces during an occupation.
Trump’s latest executive order argues that certain members of foreign terrorist organizations can fall within the broader enemy exception.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, believes that argument puts the administration in a stronger legal position than its original policy.
The distinction is important.
Trump’s first approach attempted to restrict citizenship based largely on the immigration status of a child’s parents. The revised policy focuses on groups that the administration argues already fit within historically recognized exceptions.
Whether federal judges accept that interpretation remains an open question.
Critics Challenge Trump’s Interpretation
Opponents say the White House is stretching those historical exceptions far beyond what the Supreme Court intended.
David Bier, director of immigration studies at the libertarian Cato Institute, argues that virtually everyone physically present in the United States is subject to American laws, regardless of immigration status.
Foreign diplomats represent a well-established exception because of diplomatic immunity, but Bier questions whether a president can independently declare additional groups outside the jurisdiction of the United States.
That creates another constitutional issue extending beyond birthright citizenship itself.
The courts may have to decide not only who qualifies for citizenship under the 14th Amendment, but also how much authority the president possesses to determine who falls outside American jurisdiction.
Bier believes allowing the executive branch to make that determination without Congress would amount to a major expansion of presidential power.
One Word Could Create Problems for Trump
University of Virginia School of Law professor Amanda Frost has identified another potential weakness in the administration’s argument.
The historical Supreme Court precedent refers to hostile forces “occupying” American territory.
That terminology could matter.
A person associated with a foreign terrorist organization who is physically present inside the United States is not necessarily equivalent to a soldier participating in a hostile military occupation.
Frost therefore argues that the historical exception cited by the administration may be considerably narrower than Trump officials contend.
Both Frost and Bier believe the latest citizenship order should ultimately be struck down.
Conservative legal experts disagree, setting the stage for another potentially significant court battle.
A Surprising Legal Question Could Help Trump
Before judges even reach the central constitutional question, Trump’s opponents may have to overcome another hurdle: standing.
Under federal law, plaintiffs generally must establish that a government action has caused, or imminently will cause, a concrete injury that a court has the authority to remedy.
Gene Hamilton, co-founder and president of America First Legal, has suggested that determining who has standing to challenge portions of Trump’s new policy could become complicated.
That could be particularly true when a disputed provision involves members of designated foreign terrorist organizations.
Standing would not necessarily determine whether Trump’s policy is constitutional. But it could determine which plaintiffs are permitted to bring certain challenges in the first place.
Trump’s Order Is Already Facing Court Challenges
The administration will not have to wait long to discover how judges view its new strategy.
Groups involved in challenging Trump’s original birthright citizenship policy have also opposed the latest executive order.
They contend that the president is attempting to establish new citizenship exceptions that conflict with the Constitution and the Supreme Court’s June decision.
The new order is scheduled to take effect Sept. 6.
Legal challenges are proceeding in federal courts, including cases in Maryland and New Hampshire, meaning the administration’s revised policy could quickly find itself moving through the judicial system.
The eventual outcome could provide greater clarity about how far a president can go in interpreting the jurisdiction language of the 14th Amendment.
Trump Launches Separate Crackdown on Birth Tourism
Trump’s second Aug. 6 executive order takes aim at another politically sensitive immigration issue: birth tourism.
Birth tourism generally refers to foreign nationals traveling to the United States while pregnant with the primary purpose of giving birth on American soil, allowing their child to receive U.S. citizenship.
The administration directed the State Department and Department of Homeland Security to take tougher action against suspected cases.
That could include denying certain visas and pursuing removal proceedings against individuals believed to have entered or remained in the United States for birth-tourism purposes.
Some conservative legal experts believe this part of Trump’s strategy has an even stronger chance of surviving legal scrutiny.
Government Has Broad Authority Over Visas
Hamilton described Trump’s birth-tourism action as resting on strong legal footing because foreign nationals generally have no guaranteed constitutional right to receive a U.S. visa.
The federal government has long exercised broad authority over immigration and the conditions under which foreign nationals may enter the country.
Trump’s order relies in part on Section 215(a) of the Immigration and Nationality Act while directing federal officials to use existing authority more aggressively against suspected birth tourism.
That makes the legal issue different from determining whether someone born inside the United States qualifies for citizenship.
Rather than attempting to revoke citizenship after a child is born, the government can potentially prevent a foreign national from entering the country if officials determine that the individual does not qualify for a visa.
Birth Tourism Restrictions Aren’t Entirely New
Critics point out that the federal government already possessed tools to combat birth tourism before Trump’s latest executive action.
State Department rules dating to 2020 instruct consular officials to deny certain visitor visas when they have reason to believe an applicant’s primary purpose for traveling to the United States is giving birth in order to obtain citizenship for the child.
That has led opponents to question whether another executive order was necessary.
Debu Gandhi, senior director of immigration policy at the Center for American Progress, argues that existing federal law already gives authorities the ability to investigate birth-tourism operations and reject fraudulent visa applications.
She also contends that Trump’s broader efforts continue to conflict with the citizenship protections contained in the 14th Amendment.
The administration’s supporters see the issue differently, arguing that the president is using existing immigration authority to strengthen enforcement.
Why Trump’s New Strategy Could Matter
The biggest difference between Trump’s original birthright citizenship effort and his latest approach may ultimately be its scope.
Instead of asking courts to approve a sweeping reinterpretation affecting large numbers of children born to illegal immigrants or temporary visitors, the administration is concentrating on narrower categories that it believes fit within historical exceptions.
That does not guarantee Trump a victory.
Serious constitutional questions remain, and several legal scholars believe the administration is still exceeding its authority.
But the narrower policy could force courts to address questions that were not necessarily resolved by the earlier Supreme Court ruling.
That is why the latest legal battle could produce a very different result.
The Fight Over Birthright Citizenship Is Far From Finished
If Trump’s new strategy fails, conservatives seeking additional restrictions on birthright citizenship still have other options — although none would be easy.
Congress could attempt to address portions of the issue through legislation.
A constitutional amendment could provide a more definitive change, but the Constitution deliberately makes that process extraordinarily difficult. An amendment ultimately requires ratification by three-fourths of the states.
For now, the battle will remain primarily in the courts.
Shapiro believes Trump’s administration is on stronger ground with its narrower approach and has suggested that the president might have received a different result had the original policy been structured this way.
Critics remain convinced that the 14th Amendment protects citizenship more broadly than Trump’s administration acknowledges.
That leaves judges with a consequential question: Is the president creating new exceptions to birthright citizenship, or is he applying exceptions that American law has recognized for more than a century?
The answer could determine whether Trump’s new strategy becomes another courtroom defeat — or a significant victory in his administration’s effort to reshape U.S. immigration policy.