President Donald Trump has renewed his effort to restrict birthright citizenship, this time focusing heavily on so-called “birth tourism.” But legal experts say the latest move could face an uphill fight because of a Supreme Court ruling issued just weeks earlier.
Trump signed two executive orders aimed at curbing the practice, including measures targeting parents accused of using fraudulent means to secure U.S. citizenship for their children. Another order seeks to restrict visas for foreign nationals suspected of travelling to the United States primarily to give birth.
The central problem for the administration is the Supreme Court’s recent decision rejecting Trump’s earlier attempt to narrow birthright citizenship.
The court ruled that the 14th Amendment protects citizenship for children born in the United States when they fall within its jurisdiction. That decision has led several legal scholars to question whether the administration can now create new exceptions based on the conduct or intentions of a child’s parents.
Amanda Frost, a University of Virginia law professor who studies citizenship law, argued that the circumstances surrounding a parent’s entry into the country do not change the constitutional status of a child born on U.S. soil.
Trump has repeatedly argued that birthright citizenship encourages both illegal immigration and birth tourism. His latest orders attempt to tackle both issues while moving beyond the broader policy he previously pursued.
One provision directs federal agencies to refuse recognition of citizenship when a parent is allegedly involved in fraudulent activity connected to obtaining citizenship. Another seeks to make it harder for people suspected of birth tourism to obtain visas.
The administration insists the measures do not conflict with the Supreme Court’s ruling. White House officials have defended the orders as an effort to address conduct surrounding the acquisition of citizenship rather than eliminate birthright citizenship altogether.
Legal scholars, however, see significant constitutional obstacles.
The Supreme Court’s ruling did not carve out an exception for children whose parents may have violated immigration or other federal laws. John Yoo, a former Justice Department official and law professor at the University of California, Berkeley, said he did not believe fraudulent conduct by a parent fits within the exceptions recognized by the court.
The new orders also attempt to broaden the traditional exceptions to birthright citizenship. Historically, those exceptions have included children of foreign diplomats and certain hostile forces occupying U.S. territory.
Trump’s directive would expand the concept to cover additional foreign government employees and people associated with terrorist organizations.
That portion of the policy could prove more complicated. Some scholars believe narrowly defined expansions might withstand judicial scrutiny, particularly where individuals enjoy substantial immunity from U.S. law. Others warn that broader definitions could create serious constitutional problems.
Sam Erman, a University of Michigan law professor, pointed to the danger of applying expansive definitions retroactively or too broadly. Historical examples, including the treatment of Japanese immigrants as enemy aliens during World War II, illustrate how such classifications could produce difficult consequences for children born in the United States.
Another concern is how immigration officials would interpret the new rules.
Terms such as “alien enemy” and the purpose behind a foreign national’s visit can be difficult to define precisely. Hiroshi Motomura, an immigration law professor at UCLA, said broad language could give government officials considerable discretion when deciding whether someone should receive a visa or be admitted to the country.
That discretion could become a major source of litigation.
The administration’s latest push follows a sharply divided Supreme Court ruling that rejected Trump’s earlier attempt to restrict birthright citizenship. Chief Justice John Roberts, writing for the majority, emphasized the constitutional guarantee attached to people born in the United States.
Justice Samuel Alito took the opposite view in dissent, arguing that the ruling would produce an overly expansive interpretation of birthright citizenship. He specifically objected to citizenship automatically extending to children whose mothers enter the country only briefly for the purpose of giving birth.
That disagreement now sits at the heart of Trump’s renewed campaign.
The administration maintains that its new orders are consistent with existing constitutional principles. Critics argue they amount to an attempt to accomplish indirectly what the Supreme Court has already prevented the president from doing directly.
Rachel Rosenbloom, an immigration law professor at Northeastern University, said she expects the new citizenship exclusions to face serious constitutional challenges.
The coming court battles are therefore likely to focus less on whether birth tourism exists and more on a fundamental question: Can the government punish or restrict a parent’s conduct without changing the citizenship rights of a child born on American soil?
For Trump, that distinction could determine whether his latest immigration initiative survives beyond the Oval Office.
