Donald Trump failed to persuade the Supreme Court that he could deny citizenship to children born in the United States based on their parents’ immigration status.
Five weeks later, he returned to the Oval Office with Stephen Miller and signed a new executive order targeting what the administration calls “birth tourism.”
“We’re cracking down very big,” Trump declared Thursday. “Big crackdowns.”
The new maneuver allows Trump to revive one of his most politically explosive immigration fights while attempting to avoid a direct collision with the Supreme Court ruling that defeated him in June.
But the distinction between targeting immigration fraud and restricting citizenship will determine whether this order survives.
Birth tourism generally describes people traveling to another country with the intention of giving birth there so their child receives citizenship.
The federal government already possesses authority to investigate visa fraud, false statements and misrepresentations made by people entering the United States. An administration can increase scrutiny of visa applications, examine the declared purpose of travel and pursue businesses accused of organizing fraudulent schemes.
What Trump cannot do is erase the constitutional citizenship of a child born on American soil simply because the administration disapproves of the parents’ motives.
The Supreme Court settled that question in Trump v. Barbara on June 30.
Chief Justice John Roberts wrote for the court that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the country and are therefore citizens at birth under the Fourteenth Amendment.
The decision invalidated Trump’s previous executive order, which attempted to deny recognition of citizenship to children whose parents lacked permanent legal status.
The ruling was direct.
“Under the Constitution, they are citizens at birth,” the court concluded. Supreme Court decision in Trump v. Barbara
Trump made clear Thursday that he remains furious about the loss.
“They’ve taken birthright citizenship, and they’re making a joke out of it,” he said.
“I thought we were going to win it at the Supreme Court,” Trump continued. “Unfortunately, we had a bad decision, a very unfair decision. Our country suffers because of it.”
A president may criticize a Supreme Court ruling, but an executive order cannot overrule it.
If Thursday’s directive focuses exclusively on lawful immigration enforcement—such as identifying visa applications containing knowingly false information—it may rest on authorities untouched by the citizenship decision.
If it attempts to deny passports, Social Security numbers or other proof of citizenship to American-born children, it would encounter the precise constitutional barrier the court just reinforced.
The publicly reported remarks did not provide enough detail to determine exactly how the order will operate in every case.
Trump said it would give his administration the ability to act “in a much more forceful manner.” Miller, the architect of many of Trump’s immigration policies, stood beside him during the signing.
That combination will ensure close scrutiny from civil-rights organizations and immigration attorneys.
Trump also repeated a misleading claim about America’s place in the world.
He said the United States is essentially the only significant country—and almost the only country at all—that provides birthright citizenship.
It is not.
Canada generally recognizes people born in the country as citizens, with narrow exceptions such as children of foreign diplomats. Government of Canada citizenship guidance
Countries across the Americas also maintain forms of citizenship based on birthplace. Rules and exceptions vary, but the United States is plainly not alone.
The political purpose of Trump’s claim is nevertheless clear.
By presenting birthright citizenship as a bizarre American anomaly, he can portray a constitutional protection as an accidental loophole exploited by foreigners.
The Supreme Court rejected that theory.
Its decision relied on the Fourteenth Amendment’s text and the landmark 1898 ruling in United States v. Wong Kim Ark. The court concluded that temporary visitors remain subject to American law while present in the country—and their U.S.-born children consequently satisfy the Constitution’s citizenship requirements.
That leaves Trump with a narrower path.
He can police the border.
He can enforce visa rules.
He can prosecute provable fraud.
But he cannot transform alleged wrongdoing by a parent into constitutional statelessness for a child born in the United States.
Trump’s new order may be drafted to remain on the lawful side of that line.
Or it may become another attempt to achieve indirectly what the Supreme Court has already told him he cannot do directly.
The administration calls it a crackdown on birth tourism.
The next lawsuit will ask whether it is actually Trump’s defeated citizenship order wearing a new disguise.
