Trump narrows birthright citizenship in two new orders

President Donald Trump signed two executive orders on Thursday that would deny federal recognition of citizenship to some children born on American soil, five weeks after the Supreme Court struck down his first attempt to end birthright citizenship.

The first order tells federal agencies not to issue citizenship documents to a person born in the United States when neither parent is a citizen and one of four conditions applies. The second directs the State Department and the Department of Homeland Security to keep out foreign nationals the government believes are traveling here to give birth.

Both are narrower than the order the Supreme Court rejected on June 30, and both are written to sit inside that decision rather than against it. The citizenship order quotes the ruling in its second paragraph and builds its whole list of excluded children on a single phrase lifted from it.

We had a very unfortunate decision in the Supreme Court concerning birthright. It was close, but a very, very unfortunate decision. So we're making adjustments because it's very unfair.

What the orders say

The citizenship order names four situations and says the list is not exhaustive. A person is excluded if either parent is an alien enemy, which the order defines to include any member of a designated foreign terrorist organization, or a specially designated global terrorist under the International Emergency Economic Powers Act and a 2001 order on terrorists' property.

A second category covers foreign government employees, and it runs well past ambassadors. It reaches anyone employed by a foreign embassy or consulate who is a national of that country, anyone employed by a foreign government in an official capacity, and anyone working for an international organization who holds immunity through it.

The third condition is about money and about fraud. It applies where a parent entered a commercial transaction to purchase or access birthright citizenship, including paying to have the mother here to give birth or paying a surrogate, or engaged in fraud to obtain citizenship. The fourth covers births in United States territory or territorial waters where no federal statute grants citizenship.

Nothing in the order changes a state birth certificate. It instructs federal agencies not to issue documents recognizing citizenship, and not to accept state or local documents that purport to recognize it. Enforcement falls to the State Department, the Justice Department, Homeland Security and the Social Security Administration. The text speaks throughout of persons rather than of newborns.

The second order defines birth tourism as entering the United States on a nonimmigrant visa for the purpose of giving birth, or helping anyone else do so. It then delegates the president's authority over entry under section 215(a) of the Immigration and Nationality Act to the secretaries of state and homeland security.

Under that delegation the two departments may refuse a visa or refuse entry, revoke a visa and permanently bar anyone who tried, remove someone who took part, and act against the entities, organizations or individuals behind it. Either secretary may exempt a person on humanitarian grounds or where entry is in the national interest.

So that practice of birth tourism is, as of the signing of this order, hereby banned. And what that means is that no one in the world is any more allowed to obtain a visa for this fraudulent purpose

Miller said the people made ineligible by the other order include "alien enemies of the United States, members of foreign terrorist organizations and large categories of people who lobby and act on behalf of foreign governments." ABC News reported his remarks from the Oval Office, where he pointed to section 215(a) as the source of the authority.

The phrase the orders rest on

The citizenship order does not argue with the Supreme Court. It cites the June ruling, Trump v. Barbara, and states that the court decided the Fourteenth Amendment extends citizenship to children born to parents in the United States "for whom no extraterritorial fiction applie[s]." The four categories are the administration's answer to who is left out.

That phrase is in the opinion. It sits in the passage where Chief Justice John Roberts explains that the clause restated the common law already in force, and writes that any child born "under the protection of" the United States, meaning any child for whom no extraterritorial fiction applied, was made a citizen.

The opinion also sets out what that fiction covered. It describes the exceptions to the common law rule as narrow and lists three: children born in lands the sovereign did not control, children born in areas temporarily outside the sovereign's control, and children of foreign ministers, which meant diplomats and their families.

On temporary visitors the opinion is blunt. Roberts wrote that a sovereign's jurisdiction "made no exception for those only temporarily present within the sovereign's territory," and that nearly everyone inside the country was therefore answerable to it. That passage is about jurisdiction, which is the half of the clause the new order does not discuss.

Where the two texts part

The order's employee category is wider than the exception the opinion described. It reaches any foreign national employed by his own government in an official capacity, not only ministers and their families, and the court did not say whether the exception stretches that far. The condition about paying for a birth has no counterpart in the list at all.

The administration has written the order to survive losing parts of it. A severability clause says that if any provision is held invalid the rest still stands, and agency heads have 30 days from Thursday to publish guidance on how they will apply it, which puts the first concrete decisions in early September.

What the court decided in June

The court held on June 30 that children born in the United States to parents unlawfully or temporarily present are subject to its jurisdiction and are citizens at birth. Roberts wrote the opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson.

Justice Brett Kavanaugh concurred in the judgment and dissented in part, agreeing with the result but not the reasoning, which made the judgment 6 to 3. Justice Clarence Thomas dissented and was joined by Justice Neil Gorsuch, and Justice Samuel Alito and Gorsuch each filed dissents of their own. Alito called the ruling "a serious mistake."

The order the court struck down was signed on Trump's first day back in office in January 2025 and never took effect. Federal judges blocked it, and a judge in New Hampshire certified a nationwide class of children who would be denied citizenship under it and stopped the government enforcing it while the case ran.

Trump has argued for years that the amendment was meant only for the children of freed slaves. "This was done right after the Civil War," he said on Thursday. "This was for the babies of slaves." The opinion traces the clause to the repudiation of Dred Scott v. Sandford.

How big birth tourism is

Nobody knows, and the government does not measure it. The closest official figure comes from the natality files kept by the Centers for Disease Control and Prevention, which recorded 9,576 births in 2024 to mothers who gave an address outside the country and its territories. There were about 3.6 million births in all that year.

The high end comes from the Center for Immigration Studies, which argues for lower immigration and reached a figure of up to 26,000 a year by comparing census data with birth records. The Migration Policy Institute treats that as the most expansive estimate available and also calls it contested.

The Supreme Court already decided this issue: Birthright citizenship is guaranteed by the Constitution. No additional executive order can change the meaning of the Constitution. Any executive order that tries to rewrite birthright citizenship will meet the same fate as the last one.

Trump said on Thursday that hundreds of thousands of people take advantage of birth tourism. At the April argument his own solicitor general, D. John Sauer, was asked by Roberts how common it was and answered that no one knows for sure. No challenge to either order had been reported by Friday morning.