Trump targets birthright citizenship with second executive order push, setting up new court fight

Two executive orders Thursday will narrow automatic birthright citizenship for children born in specific circumstances and direct federal agencies to crack down on commercial birth tourism centers, Axios reported. The push is Trump's second attempt after the Supreme Court struck down a broader version of the same order on June 30. The administration argues that ruling still leaves space for restrictions under exceptions the court has long recognized.

Four categories, a narrow legal theory

The first order covers four categories of future births. Children of noncitizen foreign diplomatic staff in the United States would lose automatic citizenship, extending an exclusion the 14th Amendment already applies to ambassadors' families. Children classified as alien enemies, including those affiliated with federally designated terrorist organizations, fall under a second exclusion on the theory that the 14th Amendment does not cover invading forces. A third category covers births in U.S. territories, but only if Congress separately passes legislation to end automatic citizenship there. A bill to that effect was introduced last month and is not expected to pass.

The fourth and most commercially targeted category is children born of mothers who the administration says entered the United States deceptively and solely to give birth. Federal law already bars obtaining a tourist visa primarily to secure citizenship through birth. The administration's legal theory treats commercial birth tourism as a form of fraudulent misrepresentation, the same principle used to revoke citizenship obtained through naturalization fraud.

Birth tourism: the industry in focus

A second executive order directs the Secretary of State and the Department of Homeland Security to issue rules and guidance targeting birth tourism operations at home and abroad. The House Oversight Committee in May requested documents from a company called "Have My Baby in Miami" as part of an investigation into the industry. The committee cited national security and election integrity concerns, noting that foreign mothers traveling for this purpose come predominantly from China and Russia. The Senate Homeland Security Committee released a separate report on the industry in 2022.

Estimates put the number of children born through U.S. birth tourism at the low thousands to the tens of thousands.

What the courts will decide

Legal challenges are expected quickly. The 14th Amendment guarantees citizenship to nearly everyone born on U.S. soil, and courts blocked Trump's first order before it took effect. Amanda Frost, an immigration law professor at the University of Virginia, told PolitiFact that enforcing existing visa regulations is the appropriate tool for addressing birth tourism. The next threshold to watch is any injunction request filed in federal district court after Thursday's signing.