Latest Attack on Birthright Citizenship Is As Unconstitutional As the First One

Dissatisfied with the Supreme Court’s decision in Trump v. Barbara, President Donald Trump issued a pair of executive orders earlier this month that once again took aim at birthright citizenship, which the 14th Amendment guarantees to every person born in the United States, with a narrow exception for the children of foreign ambassadors and diplomats.

The president had vowed to seek reconsideration of the landmark ruling, but his Justice Department never did. In one of the executive orders, issued after the Supreme Court’s judgment became final, Trump noted that this new attempt “prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court.”

Yet the orders, which are largely concerned with what the Trump administration has termed “birth tourism,” read as an end-run to Barbara in that they seek to create exceptions to birthright citizenship that the Supreme Court has already rejected.

Indeed, the plaintiffs in Barbara are already asking the federal judge overseeing the original litigation to clarify that the president’s new actions remain unlawful. “This new Order violates the Court’s existing preliminary injunction, as it purports to strip birthright citizenship from members of the provisionally certified class despite the Supreme Court’s recent decision,” the plaintiffs wrote in a new motion.

The 14th Amendment Center for Law and Democracy will remain vigilant about these new developments. To learn more about our defense of birthright citizenship — including an amicus brief cited by Justice Ketanji Brown Jackson in a concurring opinion in Barbara — visit our dedicated resource page.