President Donald Trump issued two executive orders Monday intended to restrict birthright citizenship for specific categories of children born in the United States. The move follows a previous attempt by the administration to end the practice by executive action, which was challenged and subsequently reviewed by the U.S. Supreme Court. In that case, titled Trump v. Barbara, a 6-3 majority ruled that the 14th Amendment guarantees citizenship to children born on American soil to parents who are in the country unlawfully or on temporary visas.
The Supreme Court's ruling in Trump v. Barbara defined U.S. jurisdiction as the power of the government to govern those within its territory, exempting only those physically or nominally outside American law, such as children of foreign diplomats. Chief Justice John Roberts wrote for the majority that a child born on American soil and subject to American law is a citizen. President Trump characterized the decision as a "miscarriage of justice" and initially signaled he would seek reconsideration, though no action was taken before the legal deadline.
The first new order, "Continuing to Protect the Meaning and Value of American Citizenship," seeks to create new exceptions to birthright citizenship by defining certain parents as falling under "extraterritoriality." One specific category targets children born through commercial surrogacy involving international parents. The second order seeks to deny visas to individuals the administration classifies as "birth tourists." Additionally, the administration seeks to exclude children of "alien enemies," which the order defines to include members of designated Foreign Terrorist Organizations.
The scale of the surrogacy provision affects a relatively small group; while there were approximately 10,000 embryo transfers to surrogates in 2022, only about 32 percent of such transfers between 2014 and 2020 involved international parents. However, the "alien enemy" provision introduces a broader uncertainty, as the administration suggests citizenship could be challenged years after birth if an Immigration and Customs Enforcement (ICE) official determines a parent’s affiliation with a terrorist group. This creates a potential lifelong change in legal rights for children based on parental conduct, which legal experts note may conflict with the constitutional prohibition against "corruption of blood" for the crimes of parents.
The orders set a precedent for using executive fiat to interpret Supreme Court definitions, such as "extraterritorial fiction," to narrow the scope of the 14th Amendment. If the orders are implemented, the immediate notice for affected individuals would be the denial of citizenship documentation or visas. However, given the Supreme Court's prior ruling in Trump v. Barbara, these new orders are expected to face immediate legal challenges in federal court. The administration has not yet reported specific effective dates for the enforcement of these new citizenship exceptions.