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The Supreme Court has spoken; birthright citizenship is part of the Constitution. Babies born here, with rare exceptions like one for children born to foreign diplomats, are American citizens regardless of their parents’ immigration status.
There was an asterisk, of course. We discussed it at the time the decision in Barbara, the birthright citizenship case, came down. The asterisk was the concurrence by Justice Brett Kavanaugh, who joined the majority but had different reasons for reaching that result. (For more detail, that piece is here.)
Justice Kavanaugh believes Trump’s executive order ending birthright citizenship violated a federal law—but importantly, not the 14th Amendment to the Constitution. That matters because although Trump can’t amend the Constitution with an executive order, Congress can change laws it has passed. Kavanaugh wasn’t particularly subtle; his opinion was an invitation for Congress to do just that, implying he would then flip sides. Congress, he wrote, could “enact new legislation” that ends automatic citizenship for babies born to people who are “unlawfully or temporarily in the country.”
But apparently Congress doesn’t want to do that, at least not now.
Barbara did not, however, stop Donald Trump. Thursday, in a pair of Executive Orders that read more like political puff pieces than actual policy, Trump tried, again, to undo birthright citizenship.
The first order is titled “Ending Birth Tourism.” You can find it here.
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That’s ironic, since Trump-branded properties in Florida were linked to Russian birth tourism back in 2018, although it appears to have involved people in his buildings leasing their property to birth tourists, with no indication Trump or his businesses were benefiting financially.
The executive order defines birth tourism as any effort by someone with a nonimmigrant visa to enter the U.S. “for the purpose of giving birth on American soil” or any effort by someone to help such a person enter the United States. It gives the Secretaries of State and Homeland Security the authority to take:
appropriate action to prevent the entry into the United States of, or the granting of any visa or other travel authorization to, any alien entering or attempting to enter the United States for the purpose of engaging in birth tourism;
revoking the visa or travel authorization and permanently barring entry of any alien who enters or attempts to enter the United States for the purpose of engaging in birth tourism.
The Secretaries can also deny entry to or remove any alien from the U.S. if they “previously engaged or plans to engage in birth tourism” and also lets them take “appropriate action” against people and entities that facilitate birth tourism.
And, of course, there’s a loophole so Trump can still help out his friends. Because there’s always one. The Secretaries, “may exempt a foreign national from actions taken pursuant to this order on humanitarian grounds or when the foreign national’s entry is in the national interest, as determined by the Secretary of State or the Secretary of Homeland Security.” One can only imagine the subtlety with which an administration that gives every appearance of offering pardons for sale could deploy a provision like that to its benefit.
The second executive order has a title so saccharine that you know it must have given Stephen Miller a thrill when he picked it out: Continuing To Protect The Meaning And Value Of American Citizenship.
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The EO, which you can read here, purports to take away birthright citizenship “when neither parent of that person (the baby) is a citizen and any of the following applies”:
“either parent of that person is an alien enemy”. They define “alien enemy” as a member of certain designated terrorist organizations, in other words, a concept so vague as to be applied however the administration chooses to—we all remember the boats blown out of the water on baseless claims that fishermen on them were members of the Tren de Aragua gang, intent on invading the U.S.
“either parent of that person is a foreign government employee,” which they define to include traditional exclusions that are recognized to birthright citizenship like foreign ambassadors’ kids or embassy employees who are foreign citizens, but it also includes new categories like “persons employed by an international organization that possess international-organization immunity” or children born to a parent who “engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship,” a concept so poorly designed it could be used to target people the administration wants to while permitting others to retain citizenship. It purports to deny citizenship to babies “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute,” perhaps a nod at Justice Kavanaugh as there were four clear votes for the proposition that this is a constitutional right, not a statutory one.
There will, of course, be litigation. The issue of standing, among others, will have to be evaluated, and then the pro-democracy lawyers will go to court. We will find out if Justice Kavanaugh meant it when he said only Congress could change the law, not another, more carefully worded but still unconstitutional directive from the authoritarian in the White House.
These newest Trump’s executive orders are little more than a performative stunt, a smack back from a narcissist who doesn’t like to be told no, even by the nation’s highest Court, which usually tells him yes. The EO’s seem unlikely to find much love from the lower courts, given the precedent from Barbara that they are obligated to apply. But we do live in the era of the unitary executive and a Supreme Court that panders to that theory, and sometimes to its current personification. So we will watch; we will see how the administration tries to implement its new policies and how the courts respond.
The issue of who gets to be a citizen is too important to be left to the whims of Donald Trump and Stephen Miller. This whole sordid affair exemplifies why we have laws and why it’s important to be a rule of law country. Trump is trying to change the rules that determine who can be an American to suit his own whims. That’s not how a democracy works. We believe in justice and fairness, not kings. No kings. Not on this issue or any other.
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We’re in this together,
Joyce