Trump Issues Another Unconstitutional Executive Order Targeting Birthright Citizenship

In Trump v. Barbara, issued in June, the Supreme Court ruled against Donald Trump’s executive order denying birthright citizenship to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. Today, Trump issued another executive order seeking to narrow birthright citzenship, one that is also unconstitutional, even though the groups affected are much smaller than those targeted by the earlier order.

Today’s order denies birthright citizenship to four categories of children:

1.  Children of “alien enemies,” defined as those where at least one parent is a  “designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism).”
2. Children born to at least one parent who is a “foreign government employee” or employed by an “international organization that possess international-organization immunity.”
3. Children where “either parent” has engaged in “birth tourist” transactions of various kinds (deliberately seeking to give birth in the US so the child would get birthright citizenship).
4. Children “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.” As far as I can tell (I welcome correction by experts), this only applies to children born in American Samoa, the one populated overseas US territory to whose residents Congress has not conferred citizenship by statute.

With one exception (children of foreign-government employees who have diplomatic immunity), all of these children are entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment, as (rightly) interpreted by the Supreme Court in Trump v. Barbara. The Citizenship Clause grants citizenship to all children “born or naturalized in the United States, and subject to the jurisdiction thereof.” In Barbara, the Supreme Court majority made clear that “subject to the jurisdiction thereof” includes children of all persons who are subject to and require to obey US law:

In 1868, as today, “jurisdiction” (in the context of a sovereign) refers to the “[p]ower of governing or legislating.” N. Webster, An American Dictionary of the English Language 732 (C. Goodrich & N. Porter eds. 1865)…. To be “subject to” the jurisdiction of the United States, then, is to “liv[e] under” its “dominion,” J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause’s territorial focus on those born “in” the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory….

Almost all the groups covered by today’s order are “subject to the jurisdiction” of the US in the sense that they are within the “dominion” of the US and thus legally required to obey US law. For example, if they commit a crime on US territory, they can be prosecuted, and if they commit a civil wrong, they can be sued in US courts.

That’s obviously true of those engaged in “birth tourism.” Indeed, the fact that Barbara covers birth tourists is reinforced by Justice Samuel Alito’s dissent complaining about this fact, at length. In a previous post, I have explained why the birth tourism problem is overblown and – indeed – not really a problem at all. But whatever we might think of this as a matter of morality or policy, it is undeniable that children of birth tourists are covered by the majority’s reasoning.

Much the same is true of children of most employees of foreign governments and international organization. With one notable exception, these people, too, are subject to US law, can be prosecuted for crimes, and so on. The exception is children of parents who have diplomatic immunity, such as ambassadors and other diplomats. Children of such people are already denied birthright citizenship, and have been since the inception of the Citizenship Clause in 1868.

The same reasoning applies to children born in US overseas territories where Congress has not granted citizenship by statute (again, at this point, that seems to include only those born in American Samoa; but I welcome correction from experts if I have this wrong). People living in these territories are undeniably subject to US law, and indeed Congress has plenary power to legislate with respect to them. I don’t know what Trump has against the people of American Samoa. But children born there are obviously entitled to birthright citizenship under the logic of Trump v. Barbara.

In Fitisemanu v. United States (2021), the US Court of Appeals for the Tenth Circuit ruled that people born in American Samoa are not entitled to birthright citizenship under the Constitution. But this decision was before Barbara and is at odds with its reasoning.

Finally, the same is true of children of “alien enemies,” defined in the order as members of various designated “terrorist” entities. If they enter the United States, they are subject to US law. That’s why they can be prosecuted for any crimes they commit on US soil – including acts of terrorism!

Members of these groups may be bad people. Some have committed horrendous crimes. But that is no reason to visit the sins of the parents upon the children. If a murderer or a rapist has a child born on US soil, the child is entitled to birthright citizenship, notwithstanding the reprehensible behavior of the parents. The same logic applies here.

It is also worth noting that the “foreign terrorist organization” (FTO) designation has been slapped onto various groups that are not actually terrorists in the ordinary meaning of the word, most notably groups engaged in smuggling illegal drugs.

Trump may be trying to use the “alien enemy” designation here to analogize these children to children of members of an invading army, born  at a time and place where the invaders have seized control of US territory, thereby preventing the exercise of US “jurisdiction.” Trump v. Barbara reaffirms the longstanding view that such children are excluded from birthright citizenship, because born in an area where US jurisdiction does not (at the time) meaningfully apply.

But FTOs have not, in fact, “invaded” or occupied any part of the United States. Thus, US jurisdiction still applies. Therefore, children of members these organizations are not analogous to children born to members of an occupying foreign army. No part of the United States has actually been invaded and occupied since the Japanese seized various US territories in the Pacific during World War II.

In my article, “Immigration is Not Invasion” (currently under submission to law journals), I explain in much more detail why the activities of drug dealers do not qualify as an “invasion,” why an FTO designation cannot change that reality, and why courts should not defer to the president’s claims that an “invasion” has occurred.

I expect today’s order will be challenged in court, and I hope and at least tentatively expect, courts will rule against it. With respect to some parts of it that apply only to relatively narrow categories of people, it may take some time to find plaintiffs who have standing (though it’s possible state governments can get standing to file a case, as happened in lower-court cases in the earlier birthright citizenship litigation).

More can be said, and I will in fact likely have more to say about this order in the future. For now, it’s enough to emphasize that large parts of it are blatantly unconstitutional under Trump v. Barbara.