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Supreme Court

Trump Courts Another Legal Defeat on Birthright Citizenship

Less than two months after losing at SCOTUS, Trump tries again with more misguided executive orders.

Damon Root | 8.18.2026 7:00 AM

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Donald Trump signing an executive order | Photo: Bonnie Cash - Pool via CNP/picture alliance/Consolidated News Photos/Newscom
(Photo: Bonnie Cash - Pool via CNP/picture alliance/Consolidated News Photos/Newscom)

Less than two months after the U.S. Supreme Court ruled his executive order on birthright citizenship to be unconstitutional, President Donald Trump has issued not one but two new executive orders on birthright citizenship that largely retread the same illegal grounds that the Supreme Court already rejected in Trump v. Barbara.

Is this just a futile outburst from a consummate sore loser? Or does Trump actually stand a chance of faring any better in court this time around?

You’re reading Injustice System from Damon Root and Reason. Get more of Damon’s commentary on constitutional law and American history.

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Trump's original 2025 executive order purported to deny the constitutional guarantee of birthright citizenship to all U.S.-born children whose parents were either unlawful immigrants or lawful temporary visitors. His pair of new executive orders basically attempts a sort of do-over on the latter group, now purporting to deny birthright citizenship to several categories of U.S-born children whose parents are lawfully but temporarily present on American soil, such as "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."

The trouble for Trump is that the Supreme Court already reviewed and repudiated the same sort of arguments against so-called "birth tourists."

During the April 1st oral arguments in Trump v. Barbara, for example, Solicitor General John Sauer asserted that "birth tourism" was the cause of all sorts of modern problems that "the 19th century Framers of this amendment" could "not possibly" have wanted to permit when they drafted the 14th Amendment and its guarantee of birthright citizenship. But Chief Justice John Roberts responded by pointing out that the Trump administration's emphasis on modern policy concerns does not alter the original meaning of the Constitution. "You do agree," Roberts told Sauer, "that that has no impact on the legal analysis before us?"

Sauer struggled for a little bit to regain his footing after getting hit with that one from the chief justice, before finally arguing back to Roberts that "we're in a new world now," one "where 8 billion people are one plane ride away from having a—a child who's a U.S. citizen."

"Well, it's a new world," Roberts promptly retorted. "It's the same Constitution."

The Supreme Court reiterated that point about an unchanging Constitution in Trump v. Barbara. "Children born of parents unlawfully or temporarily present in the United States," the Court held, "satisfy both elements of the Citizenship Clause [of the 14th Amendment]: they are 'born…in the United States' and 'subject to the jurisdiction thereof.' Under the Constitution, they are citizens at birth."

That language from the Court's holding fully covers the U.S.-born children of "birth tourists," who are "subject to the jurisdiction" of the U.S. while present on U.S. soil and therefore "citizens at birth." Nothing in Trump's new flurry of executive action does anything to change those legal facts.

The first lawsuit against this new pair of executive orders was filed last week against the Trump administration. And as Amy Howe noted at SCOTUSblog, "lawyers for the plaintiffs who successfully challenged Trump's earlier order restricting birthright citizenship" were the ones who filed it: "Lawyers from the American Civil Liberties Union and other civil rights groups urged U.S. District Judge Joseph Laplante to clarify that the new order goes beyond the limited exception – for foreign diplomats – to birthright citizenship that the Supreme Court reaffirmed in its June 30 decision in Trump v. Barbara."

If this case, or one like it, does eventually reach the Supreme Court, I see little reason to think that Trump will fare any better than he did back in June. If anything, Trump's rather obvious disregard for the Court's recent decision may only doom his latest case even more.

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NEXT: Brickbat: The Big Easy

Damon Root is a senior editor at Reason and the author of A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution (Potomac Books). His next book, Emancipation War: The Fall of Slavery and the Coming of the Thirteenth Amendment (Potomac Books), will be published in June 2026.

Supreme CourtDonald TrumpBirthright Citizenship14th AmendmentConstitutionCivil LibertiesLaw & GovernmentImmigrationExecutive Power
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  1. mad.casual   1 hour ago

    You've already said you'd support birthright citizenship up to and over Aliens and Sedition. We don't need your takes anymore.

    Moreover, we've been through this sort of "for modern audiences" stupidity at SCOTUS before/repeatedly. There are/were people who think abortion should be 100% discretionary right up to the point of delivery. There are people who thought we should be forcibly sterilizing the (not so) mentally handicapped and blowing up stills. They're retarded psycho- and sociopaths who've convinced you and other low-IQ and morally bankrupt individuals that it's not people being stupid, personally irresponsible, evil, and harming themselves or each other... it's really just liberty and free markets at work.

    Worse, you believe this after you and your colleagues own #BLM and "Kyle Rittenhouse shouldn't have been there." stupidity. You don't care about borders or black lives or culture any more than you care about any other borders or cultures. To you it's all just one big monoculture that has to be paved over en route to more control. If you have to shout "Black Lives Matter!" out of one side of your mouth and "Globalize the Intifada" out of the other, "Open the borders!" out one side and "Decolonize everything!" out the other, it makes no difference to you how much or little sense it makes or who gets hurt or killed one way or the other. Your only concern is that people pay attention to you while you're shouting.

    Log in to Reply
    1. SQRLSY   46 minutes ago

      You've already PervFectly Decreed snot only that You're a PervFected Fascist Xenophobic Anti-Cunts-Tits-Tuition Asshole, butt that You're also a Proudly Lying Servant, Serpent, and Slurp-Pants of the Evil One. We don't need your takes anymore.

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  2. Bhagwad   24 minutes ago

    Why is it so hard to accept that it needs a Constitutional amendment to change this?

    I don't particularly care one way or the other about this issue. Only that it seems plain that neither executive orders, nor legislation can change what the Constitution says. Therefore, only an amendment can do it.

    Log in to Reply
    1. SQRLSY   10 minutes ago

      DickTators don't NEEEEED no stinkin' USA Cunts-Tits-Tuition, damn-shit-all!!! When shit is all about MEEEEEE and twat ***I*** want, the Cunts-Tits-Tuition is one giant nothingburger!

      Log in to Reply

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