Trump’s Latest Birthright Citizenship and Birth Tourism Orders Narrow the Dispute

P resident Donald Trump issued two executive orders yesterday that aim to crack down on birth tourism and birthright citizenship. The orders represent Trump’s renewed effort to tackle these issues after the Supreme Court, in Trump v. Barbara, struck down a previous executive order denying citizenship to the children of transients and illegal aliens. Yesterday’s orders are more modestly and carefully crafted than the original Trump effort. Some of their provisions are fairly obviously within Trump’s powers; others will doubtless present contested legal questions. But whether or not the orders stand up entirely in court, they bear the hallmarks of lawyers having given real thought to the existing precedents.

The broader of the two orders, “Continuing to Protect the Meaning and Value of American Citizenship,” seeks — as the White House fact sheet explains — to identify “certain categories of children of aliens who are not entitled to birthright citizenship consistent with historical exceptions to birthright citizenship recognized by the Supreme Court in Barbara.” In fact, it pushes the envelope of those categories.

The traditional categories recognized in Barbara, which were drawn from the Court’s decision in United States v. Wong Kim Ark (1898) and, in turn, from the 1866 congressional debates on the Citizenship Clause of the Fourteenth Amendment, exempted “the children of ambassadors and other representatives of foreign sovereigns, as well as those born in the alien nations of Indian tribes.” (Quotations omitted). The Native American tribes were given citizenship by statute a century ago, and Trump focuses only on the remaining categories. The new order thus includes the children of noncitizens when one or both parents are “ambassadors,” “persons employed by a foreign embassy or consulate who are nationals of that foreign country,” or other “persons employed by a foreign government in an official capacity.” So far, this is mostly uncontroversial.

More controversially, the order exempts three further categories. I haven’t yet dug far into either. One is the children of an “alien enemy,” defined by reference to designated categories of foreign terrorist organizations. This fits more naturally within the concept of the Wong Kim Ark category of the children of invading armies. It’s much narrower than misguided proposals, such as one from Senator Jim Banks (R., Ind.), to just redefine any child of an illegal alien as a child of “invaders.” Leaving aside the fact that Banks based his proposal on a one-justice opinion from Justice Brett Kavanaugh rather than on the majority opinion of the Court, this is word-gaming. The point of Congress and Wong Kim Ark recognizing an exception for the children of invading armies is that a marching foreign army has two characteristics: it is a declared arm of a foreign sovereign state, and wherever it marches, it de facto suspends the sovereignty of the United States over that portion of its own territory.

If you squint hard, you could make something like the recent Ceuta incident fit that definition: 60,000 people, most of them military-age men, all from the same country, moving en masse into a small portion of Spanish territory in a single day, leaving at least 80 people dead. But to say that you might be able to apply that definition in an extreme edge case is not the same as saying that every time you see a Guatemalan mowing a lawn or a Honduran picking grapes, you are witnessing the legal equivalent of the redcoats burning the White House in 1814.

Trump’s order, by focusing on the statutorily authorized designation of alien enemies, is working in the edge-case space. It’s premature to predict whether this will work, or even if anybody with standing is likely to challenge it (it’s not easy to find people willing to submit sworn declarations in court self-identifying as members of designated terrorist groups, unless you’ve been handing out business cards at a DSA convention).

The second and likely more controversial grouping is the children of “persons employed by an international organization that possess international-organization immunity,” such as the U.N. or the World Bank (note that this is a small minority of foreign non-governmental organizations, and is limited to quasi-governmental bodies that have some sort of treaty-based legal status. Mind you, in U.S. law, these groups don’t have total immunity either). Again, this is apt to be an extremely small and mostly symbolic category.

The third area in which Trump is seeking to exclude birthright citizenship is through specific carve-outs for methods of birth tourism. This includes people “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.” After Barbara, Stephen Miller argued that the decision meant that “a foreign government can sail a hospital ship to the edge of US territorial waters, deliver a hundred babies to foreign moms, then promptly sail back to a foreign port, and that every one of those babies is American for life.” This was dubious: Wong Kim Ark itself exempted children born on “foreign public ships,” and the State Department’s Foreign Affairs Manual already excludes “Birth on foreign ships in foreign government non-commercial service,” noting that a substantial legal question applies when a ship is not in the “ports, harbors, bays, and other enclosed areas of the sea along the U.S. coast” but out to sea.

Trump also aims to deny citizenship when a parent engages in “a commercial transaction to ensure that the person’s mother is present in the United States,” or with “a surrogate present in the United States.” This is where the birth tourism rubber hits the road, and it effectively comes down to an argument that the conditions of the constitutional guarantee have been obtained by fraud.

Finally, the birth tourism executive order essentially directs the State Department and the Department of Homeland Security to draft new regulations to keep birth tourists out of the country. They undoubtedly have powers to do so, although the legality of any particular step is going to depend upon finding statutory authorization. Trump may regret including an exemption for “humanitarian grounds” that allow State or DHS to waive these regulations.

The legal fight isn’t over. But this time, Trump is picking his battles with a bit more care.