Trump Issues “Birth Tourism” Orders Following Birthright Citizenship SCOTUS Loss

On Thursday evening, President Donald Trump signed two executive orders on birthright citizenship, just over a month after the U.S. Supreme Court ruled that a previous order he made on the issue was unconstitutional.

The new orders are narrower than that previous one, which was signed in the first week of his second term in office. Several legal experts have already opined that the new orders also likely violate the 14th Amendment’s birthright citizenship clause, which grants citizenship rights to nearly every child born in the U.S., similar to how most nations in the Western Hemisphere operate.

“We had a very unfortunate decision in the Supreme Court concerning birthright, it was close,” Trump complained to reporters on Thursday regarding the high court’s decision against his first order. “So we’re making adjustments.”

The first order, titled “Ending Birth Tourism,” focuses on Trump’s claim that “birth tourism operators use deceptive advertisements and inducements to entice foreign nationals to travel to the United States for the purpose of giving birth on American soil.”

It is the “policy of the United States to promote the integrity of its immigration system, to ensure that nonimmigrant visa classifications are used only for their lawful and intended purposes, and to prevent the exploitation of those classifications by persons engaging in birth tourism,” the order reads, adding:

Pursuant to section 301 of title 3, United States Code, the authority granted to the President under section 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1185(a), is hereby delegated to the Secretary of State and the Secretary of Homeland Security to the extent necessary to implement this order.

That chapter of U.S. code makes no mention of “birth tourism” or any similar term. Instead, it allows for the implementation of “reasonable rules” and orders from the president to use existing law to restrict immigration.

It’s possible that the administration is attempting to use the vagueness of that law, as well as the claims of the executive order itself, to allow cabinet officials to make new rules regarding “birth tourism” without congressional input.

Stephen Miller, deputy chief of staff and architect of many of Trump’s draconian immigration policies, said: “The president is using his authority as commander in chief to sign first an executive order using the new rule the Supreme Court issued to expand the definitions of people who are ineligible for birthright citizenship.”

Fearmongering from Trump administration officials about “birth tourism” feeds into the racist “great replacement” conspiracy theory that falsely claims that immigrants and nonwhite people are part of a conspiracy to “replace” white people.

There are no official government statistics regarding the extent of so-called “birth tourism” in the U.S. Even during oral arguments at the Supreme Court, lawyers for the Trump administration couldn’t provide a figure, although Trump told reporters on Thursday that there were “hundreds of thousands” of such births each year.

One estimate on birth tourism — which is highly contested — suggests that around 26,000 children are born through the supposed practice annually in the U.S. If accurate, that would amount to fewer than 1 percent of all births in the country. Another estimate puts the figure at fewer than 0.3 percent of all births in the U.S.

Trump’s second executive order, titled “Continuing to Protect the Meaning and Value of American Citizenship,” reiterates existing constitutional rules regarding who can be denied citizenship, such as children born of “alien enemies” or those of foreign dignitaries. However, it also allows children to be denied birthright citizenship if either of their parents is a “member of a designated Foreign Terrorist Organization.”

Those changes could allow a sitting president to label any number of groups as “terrorists” as a means to restrict immigration. It also disregards consideration of both parents’ status — if one parent is not a designated “enemy” of the U.S. but the other one is, their U.S.-born child would be denied citizenship rights under this order, which goes against the current interpretation of the law.

The reinterpretation of the amendment’s guidelines could have severe repercussions for asylum seekers. For example, a pregnant mother coming to the U.S. — perhaps attempting to escape the father of her child — could be restricted entry under this order if the U.S. claims that the father is a member of a supposed terrorist group.

The new orders will undoubtedly be challenged, and could make their way to the Supreme Court, just as Trump’s first failed executive order on birthright citizenship did.

In June, that order was found unconstitutional by five of the nine justices of the court, and in violation of federal statute by a sixth justice. Several legal experts say these new orders will similarly be struck down.

“This new order is far less sweeping than the original, but like the first order, seemingly violates the Constitution,” Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, wrote in a post on X.

“This order expands the exception that applies to those NOT subject to the jurisdiction of the United States to people who ARE subject to the jurisdiction of the United States,” said Jonathon Booth, associate law professor at Colorado University-Boulder. “It’s flatly unconstitutional.”

The Supreme Court’s ruling earlier this summer “matters enormously in evaluating this new order,” the immigration law firm of Reddy Neumann Brown PC said in an explainer on their website. “The government cannot escape the constitutional consequences of a Supreme Court decision simply by changing the mechanism it uses to reach the same result.”

“This is my very clear legal take: [Trump] cannot issue an executive order saying that children of birthright tourism — even if the mother violates immigration law to come to the United States — are not U.S. citizens,” University of Virginia immigration law professor Amanda Frost told The Washington Post.

“Just five weeks ago, the Supreme Court made clear that birthright citizenship is not subject to a president’s whims,” said Deborah Fleischaker, senior advisor for Immigration Policy and Strategy at UnidosUS. “It is a constitutional guarantee that has stood for more ​than 150 years.”

Trump’s new orders “are nothing more than an attempt to get around that ruling,” Fleischaker added.