Trump's New Birthright Citizenship Executive Orders Are Mostly Theater

The two measures combine unconstitutional provisions with performance art.

President Donald Trump signed two executive orders on Thursday that attempt to restrict birthright citizenship narrowly. This comes a little over a month after the Supreme Court struck down his attempt to suppress birthright citizenship much more broadly. The first order specifies certain groups of people whose children the administration says are not eligible for citizenship at birth; the second addresses "birth tourism." The White House claims that the two measures will "protect the meaning and value of American citizenship."

In reality, the orders will not do much at all, because they combine unconstitutional provisions with performance art.

Let's begin with the first order. It says children will not receive birthright citizenship when either parent has been deemed an "alien enemy" by the government, is a "foreign government employee," or has "engaged in a commercial transaction" to obtain birthright citizenship for their child. It also excludes children "born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute."

In Trump v. Barbara, the Supreme Court upheld birthright citizenship. "Citizenship, then and now, was the right to have rights—to freely participate in our political community," the Court concluded. "The Framers of the Fourteenth Amendment extended that promise to 'every free-born person in this land.'" Those "subject to the jurisdiction" of the United States and its laws, as the 14th Amendment reads, are thus born citizens, the majority ruled.

That includes, then, people whose parents may have done unsavory things, whether that means they came here with the intention to do birth tourism or are allegedly an alien enemy. Some of those individuals "have committed horrendous crimes," writes attorney Ilya Somin at The Volokh Conspiracy. "But that is no reason to visit the sins of the parents upon the children. If a murderer or a rapist has a child born on U.S. soil, the child is entitled to birthright citizenship, notwithstanding the reprehensible behavior of the parents."

Excluding children of all "foreign government employee[s]," as defined in the order, would also conflict with the Court's recent ruling. That's not all-encompassing, though. The order mentions children of "persons employed by an international organization that possess international-organization immunity" and "ambassadors." It's an odd inclusion when considering children whose parents have full diplomatic immunity already do not receive birthright citizenship, because they are not "subject to the jurisdiction" of the United States.

That leaves those born in a U.S. territory or in territorial waters, where citizenship is not conferred by federal statute. It appears that is only relevant to the American Samoa, where birthright citizenship is not conferred as it is. (Children born there are "non-citizen nationals.")

Yet the more pointless order is the second: the one that, according to the White House, "delegates presidential authorities to the Secretary of State and Secretary of Homeland Security and directs them to halt the practice of birth tourism." Birth tourism, where some women travel to American solely for the purpose of having a child on U.S. soil, is a fraught subject. That helps explain why the U.S. already has the power to deny a visa if it appears the applicant wants to come here to give birth, as well as why the government has prosecuted people—including during President Joe Biden's administration—for operating birth tourism schemes.

"It's a political stunt to the extent that it is addressing the issue of so-called 'birth tourism' that's already covered by federal law," Lawrence Guttentag, a law professor at Stanford and Yale, told NBC. "So what he does isn't adding anything to what the government is already authorized to do."