President Donald Trump issued an executive order on Thursday that purported to narrow the scope of birthright citizenship, two months after suffering a major defeat on the subject at the high court. The order’s text claims that it targets “certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court” in Trump v. Barbara in June.
Trump issued an executive order last January that purported not to recognize the citizenship of children born on U.S. soil to temporary visa holders and/or undocumented immigrants. In Trump v. Barbara, the Supreme Court struck down the executive order as unconstitutional. The targeted children “satisfy both elements of the Citizenship Clause: they are ‘born … in the United States’ and ‘subject to the jurisdiction thereof,’” Chief Justice John Roberts wrote for the court. “Under the Constitution, they are citizens at birth.”
Trump’s new executive order saw things differently. It claimed that the court merely held that the citizenship clause “extends the privilege of citizenship to children born to parents in the United States ‘for whom no extraterritorial fiction applies.’” This language, from Roberts’s opinion, referred to the medieval understanding of diplomatic immunity. English kings could not expect the allegiance of foreign ambassadors on English soil because the common law “considered [them]—by a fiction of extraterritoriality—to remain on foreign soil and thus ‘under the ligeance’ of their home country.”
To the contrary, the chief justice emphasized how limited the existing exceptions were at multiple points throughout the decision. “The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions,” he observed at one point. Justice Brett Kavanaugh, who only partially concurred with Roberts’s opinion, also wrote separately to make a similar argument about new exceptions to the one now advanced by the White House. If that had been the actual ruling, Kavanaugh would not have needed to write his own opinion at all.
In the 2015 film The Big Short, the late great Anthony Bourdain explained CDOs to the audience by comparing them to a fish stew. An unscrupulous chef in this metaphor would use a mixture of day-old fish and fresher ingredients to make a more palatable dish. “You see, it’s not old fish,” Bourdain sardonically tells the audience, “it’s a whole new thing. And the best part is, they don’t even realize they’re eating day-old halibut.”
At least one of these categories is indisputably ineligible under the citizenship clause. Children of foreign ambassadors have been categorically excluded from U.S. citizenship since the Fourteenth Amendment’s ratification in 1868. By definition, their parents are not “subject to the jurisdiction of the United States” because they possess diplomatic immunity, which is an ancient and well-defined principle in foreign relations. The executive order tries to widen this exception by including a range of foreign nationals who work in diplomatic roles but do not actually have diplomatic immunity.
Justice Clarence Thomas even addressed the difference in passing in his Barbara dissent when discussing Roberts’s invocation of diplomatic immunity. He observed that “diplomatic immunity extends to ‘only a narrow set’ of ‘diplomatic official[s],’ not to all foreign representatives,” quoting from a friend-of-the-court brief filed by Texas Senator Ted Cruz and some of his colleagues. “Most foreign officials receive a partial immunity, such as immunity for their official acts,” Thomas continued. “But, partial immunity cannot render a person not ‘subject to the jurisdiction’ of the United States for Fourteenth Amendment purposes.”
It is even less likely that the foreign-diplomat exception could extend to anyone who is merely “employed by a foreign government in an official capacity.” A French civil servant who happens to give premature birth on U.S. soil while visiting this country on vacation, for example, is undoubtedly “subject to the jurisdiction” of the United States. She would possess no form of legal immunity and would thus be indistinguishable from any other temporary visa holder under Barbara. (I’m also curious how someone could be “employed by a foreign government” in anything but an “official capacity.”) The same would logically be true for United Nations or European Union employees. It could even apply to the children of representatives of the Holy See, though they tend to not have them.
One of the subcategories, for example, would target children whose parents “engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth.” Again, this would run counter to Barbara, which concluded that birthright citizenship applies to temporary visa holders. It would also produce some bizarre and perhaps unintended circumstances.
I count at least eight justices in Barbara who would likely say “no.” For Roberts and the other four justices who joined his majority opinion in full, the child would be a U.S. citizen under Barbara’s terms. Kavanaugh’s bizarre statutory argument would almost certainly lead to the same conclusion by a different road. So would the Thomas-Gorsuch stance that the citizenship clause only applied to parents who are domiciled in the United States, which would cover the Australian father. Alito did not address permanent residents since that executive order did not apply to them.
A second subcategory in the executive order would also exclude children born to parents who “engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth.” This is the first time that surrogacy has come up in the Trump administration’s birthright citizenship discussions. It apparently refers to a practice whereby some foreign billionaires allegedly pay surrogates to have their children on U.S. soil, then return them to China without ever setting foot in the United States themselves. It is unclear whether the order would only apply to children born to U.S. citizen parents or only a foreign national surrogate.
The court linked this exception to an existing premise that a child “born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns.” Roberts did not discuss it in Barbara and it is only mentioned in passing by the concurring and dissenting opinions. Either way, the advent of commercial aviation in the mid-twentieth century rendered it all but moribund.
In 2022, three American Samoans asked the Supreme Court to recognize them as birthright citizens—a rare instance where the clause’s modern interpretation did not revolve around immigrants. They argued that the Insular Cases, a set of Supreme Court rulings that generally held that the Constitution does not apply with full force in territories acquired since the Spanish-American War, should be overturned. At least two justices, Neil Gorsuch and Sonia Sotomayor, have echoed that sentiment. But the court ultimately declined to hear their case. It would be hard to square Barbara’s understanding of “subject to the jurisdiction” with the practice in American Samoa, but it is unclear if the high court wants to overturn the Insular Cases along the way.
This provision appears mainly intended to “own the libs” by allowing the administration and its allies to criticize the order’s challengers for trying to give U.S. citizenship to terrorists. Josh Blackman, a conservative law professor at the South Texas College of Law, gave credence to that reading in a blog post at Reason magazine on Thursday. “The order explains that the child of an alien enemy is not a citizen at birth,” Blackman wrote. “I welcome a lawsuit from the ACLU demanding citizenship for the children of members of Foreign Terrorist Organizations.”
For what it’s worth, this provision also appears to be based on a misconception about the September 11 hijackers. Trump publicly claimed in 2015 that the hijackers’ wives “knew exactly what was going to happen,” returned to Saudi Arabia before the attacks, and thus didn’t warn anyone in the United States. One small problem with this claim is that none of the hijackers were married or had wives in the United States at any point.
“The president is using his authority as commander in chief to sign first an executive order using the new rule the Supreme Court issued to expand the definitions of people who are ineligible for birthright citizenship,” Miller claimed. “That includes, for example, members of foreign terrorist organizations and large categories of people who lobby and act on behalf of foreign governments.”
To describe the president’s authority in these terms is to admit that it doesn’t exist. There is no “commander in chief” power to ignore the citizenship clause or the Supreme Court’s ruling on it. On the contrary, it is Congress to which the Constitution gives the power to set “rules for naturalization.” If Congress had given the power to invent new exceptions to birthright citizenship to the president, the White House would have said so. If Congress had done so, it would have been unconstitutional, as well. And if the Trump administration wants to serve a day-old fish stew to the justices, it shouldn’t be surprised when they spit it out.
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