Trump's tougher round-two birthright citizenship strategy hinges on key legal distinction, experts say

Conservative legal experts say President Donald Trump's latest attempts to narrow birthright citizenship and crack down on birth tourism may have stronger legal footing than his first effort.

After the Supreme Court ruled 6-3 in June that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the 14th Amendment, Trump issued two new executive orders taking narrower approaches to citizenship and birth tourism.

The first, signed Aug. 6, directs federal agencies to withhold documents recognizing citizenship from certain children born when neither parent is a U.S. citizen, including some whose parents are members of designated foreign terrorist organizations, foreign-government employees or participants in transactions or fraud intended to obtain birthright citizenship.

Experts from the Manhattan Institute, America First Legal and the America First Policy Institute, all right-of-center organizations, argued that Trump's new order is narrower than his first and is built around longstanding exceptions to birthright citizenship that they believe could apply here.

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"The Supreme Court has long recognized that there are exceptions to the 14th Amendment's birthright citizenship clause for the aliens who are considered children of invading armies or the children of ambassadors," America First Policy Institute senior fellow Chad Mizelle, who previously served as the Justice Department's chief of staff, told Fox News Digital. "So in a situation where you have a terrorist here contrary to the laws of the United States … who is looking to do harm … That has long been recognized by the Supreme Court, and basically going back to the history of our country, as recognized exceptions to any sort of claim of birthright citizenship."

United States v. Wong Kim Ark, decided by the Supreme Court in 1898, recognized exceptions to birthright citizenship for children of diplomats and children of alien enemies born during a hostile occupation. Trump's order argues that members of foreign terrorist organizations can fall within that enemy exception.

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"The Supreme Court ruled that you can't restrict birthright citizenship to kids of people in the country temporarily or illegally," Manhattan Institute director of constitutional studies Ilya Shapiro told Fox News Digital. "But what the new executive order does is it goes to one of the classic exceptions to birthrights citizenship, two of the classic exceptions, those who owe an allegiance to a foreign government, meaning employed by a foreign governing diplomats otherwise, and those who are invaders of foreign armies and terrorists, members of foreign organizations hostile to America, certainly qualify in that category."

David Bier, the director of immigration studies at the libertarian Cato Institute, however, argued that the president's attempt to redefine what constitutes an alien enemy without going through Congress puts the administration on legally shaky ground.

"Congress ultimately establishes what it means to be subject to U.S. jurisdiction," Bier told Fox News Digital. "There's this very limited exception for accredited diplomats and everyone else in the United States is subject to U.S. laws so the idea that the president himself on his own authority can decide who is subject U. S. jurisdiction and U.S. laws is really a radical expansion and assertion of executive power and really would be unprecedented in the history of the United States."

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"I really do think this case is testing a different proposition from the earlier case," Bier added, explaining that the issue at hand has more to do with executive power than birthright citizenship. "And I think it's a lot more questionable as well."

Amanda Frost, a professor at the University of Virginia School of Law, pointed out that United States v. Wong Kim Ark specifies that only children of enemies "occupying" some portion of the country are barred from citizenship at birth, meaning that Trump's order would not apply to terrorists simply residing within the country. She said the Trump administration could potentially expand who is legally defined as a diplomat to preclude more people from birthright citizenship, but explained such a move would make it difficult to prosecute individuals for criminal offenses, a concern shared by Bier.

Frost and Bier both believe the new executive order should be ruled unconstitutional.

Some have floated the issue of standing as a potential problem for those looking to challenge Trump's order. Legal standing requires plaintiffs to show they suffered or imminently face a concrete injury caused by the defendant that a court can remedy.

"It's going to be interesting to see who actually does have standing to challenge this order," America First Legal co-founder and president Gene Hamilton told Fox News Digital. "Is there somebody who thinks that they're going to swept up in the definition of a foreign terrorist organization? And if so, it would be kind of fun to see them try to sue the government or have someone sue on their behalf."

Trump's new order is already facing legal resistance.

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The same groups who challenged his initial order are now arguing that his new one unlawfully creates exceptions to birthright citizenship that conflict with the Supreme Court's June ruling. The order remains on the books but is not scheduled to take effect until Sept. 6, with a Maryland judge scheduled to hear an injunction request Aug. 28 and a related motion still pending in New Hampshire.

Issued on the same day as the first new executive order, the second order directed the State Department and the Department of Homeland Security to deny travel visas to or pursue removal actions against individuals believed to be in the country for the purposes of birth tourism. Birth tourism is a process through which noncitizens enter the United States while pregnant and give birth in order to secure citizenship for their child.

Hamilton described this second order as being on "sound, solid legal footing."

"It relies and invokes Section 215(a) of the INA to impose conditions and delegates authority of the Secretary of State … to ensure that we are not granting visas and allowing people to remain on visas who may be engaged in birth tourism," he explained. "It is the sovereign right and province of all governments across the world, and certainly the United States is no different, to determine who should be able to receive a visa and who shouldn't. There's no entitlement to a visa. There's no constitutional right to a visa."

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Critics also argue that the administration already had tools to combat birth tourism. Since 2020, State Department rules have directed consular officers to deny visitor visas when they have reason to believe an applicant's primary purpose is traveling to the United States to give birth and obtain citizenship for the child.

"No new executive orders are required for the federal government to go after birth tourism operators or deny fraudulent visa applications," Center for American Progress senior director of immigration policy Debu Gandhi told Fox News Digital. "Americans should take note that from day one, the Trump administration has tried to evade the Constitution's clear and unequivocal language on citizenship and unilaterally decide who is born an American."

If the administration's latest effort fails, supporters of further limits on birthright citizenship could turn to Congress or pursue a constitutional amendment, which would require approval by three-fourths of the states.

Shapiro says that the administration is on "solid ground" but noted that "if they had proceeded originally in this more targeted, narrower way" then the Supreme Court may not have ruled against them originally.

The White House did not respond to a request for comment when reached by Fox News Digital on Wednesday.