President Trump signed two new executive orders targeting birthright citizenship and birth tourism on August 6, and conservative legal experts say the narrower approach may survive where his first, broader effort did not.
The orders arrived two months after the Supreme Court struck down Trump's original birthright citizenship executive order in a 6-3 ruling that affirmed children born on U.S. soil to parents who are unlawfully or temporarily present are citizens under the 14th Amendment. Rather than relitigate the same ground, the White House shifted strategy, invoking a pair of longstanding exceptions the Court itself has recognized since 1898 and targeting a separate statute to crack down on birth tourism.
The result is a sharper, more targeted legal fight. Conservative scholars who spoke to Fox News Digital called the new orders legally sound. Opponents called them an unprecedented expansion of presidential power. A federal judge in Maryland has already signaled skepticism. And the orders face their first major courtroom test before they even take effect.
The first executive order directs federal agencies to withhold documents recognizing citizenship from certain children born in the United States when neither parent is a U.S. citizen. It does not sweep as broadly as the original order. Instead, it zeroes in on three categories: children of members of designated foreign terrorist organizations, children of foreign-government employees, and children born through transactions or fraud designed to obtain birthright citizenship.
The administration's legal hook is a doctrine dating back to the Supreme Court's 1898 decision in United States v. Wong Kim Ark. That ruling established birthright citizenship as a constitutional right, but it also recognized narrow exceptions for children of diplomats and children of "alien enemies" born during a hostile occupation of U.S. territory.
Trump's team argues that members of foreign terrorist organizations fall squarely within the enemy exception. Chad Mizelle, a senior fellow at the America First Policy Institute and former Justice Department chief of staff, laid out the case:
"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. 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."
The second order takes a different path entirely. It directs the State Department and the Department of Homeland Security to deny travel visas to, or pursue removal of, individuals believed to be entering the country for the sole purpose of giving birth on American soil. It invokes Section 215(a) of the Immigration and Nationality Act, which grants the executive branch authority to set conditions on visa issuance.
Gene Hamilton, co-founder and president of America First Legal, argued the birth-tourism order stands on particularly firm ground:
"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]. 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."
Trump himself framed the orders as a direct response to the Court's June decision. "I thought we were going to win it at the Supreme Court. Unfortunately, we had a bad decision, very unfair decision," the president said. "Our country suffers because of it and we're ending it a different way."
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, drew a clear line between the first order, which the Court rejected, and the new approach. The June ruling held that the president cannot strip citizenship from children born to parents in the country temporarily or illegally. The new order does not try to do that. It targets what Shapiro called "classic exceptions" to birthright citizenship:
"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."
Shapiro said the administration is on "solid ground", but added a pointed observation. Had the White House "proceeded originally in this more targeted, narrower way," the Supreme Court might never have ruled against them in the first place.
Hamilton raised another advantage for the administration: standing. Anyone who wants to challenge the first order would have to argue they belong to a designated foreign terrorist organization, or find someone willing to sue on their behalf.
"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."
White House Deputy Chief of Staff Stephen Miller went further, calling the birth-tourism order one of the administration's most consequential actions. "Birth tourism is by definition a fraud on the American system, on the American taxpayer," Miller told the New York Post. He ranked the orders "in the top three in terms of importance because it ends what has been one of the gravest and most egregious abuses of the American system, and it keeps American citizenship sacred."
Not everyone sees a winning strategy. David Bier, director of immigration studies at the libertarian Cato Institute, argued the orders represent a radical assertion of executive authority regardless of how they are framed. His objection goes to the core question: who decides what "subject to the jurisdiction" of the United States means under the 14th Amendment?
"Congress ultimately establishes what it means to be subject to U.S. jurisdiction. 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."
Bier acknowledged the new orders test "a different proposition from the earlier case." But he did not see that as a strength. "I think it's a lot more questionable as well," he said.
Amanda Frost, a law professor at the University of Virginia, raised a separate problem. She noted that Wong Kim Ark specifies only children of enemies "occupying" some portion of the country are barred from citizenship at birth, a far cry from the administration's broader reading of the enemy exception. Frost also warned that expanding the definition of who qualifies as a diplomat could backfire by complicating criminal prosecutions of foreign nationals.
The ACLU took the hardest line. "The Supreme Court already decided this issue: Birthright citizenship is guaranteed by the Constitution. No additional executive order can change the meaning of the Constitution," said Cody Wofsy of the ACLU Immigrants' Rights Project.
Debu Gandhi, senior director of immigration policy at the Center for American Progress, argued the entire exercise is unnecessary:
"No new executive orders are required for the federal government to go after birth tourism operators or deny fraudulent visa applications. 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."
Gandhi's point about existing enforcement tools is not baseless. State Department rules have directed consular officers to deny visitor visas to applicants whose primary purpose is traveling to the U.S. to give birth since 2020, a policy that predates Trump's current term.
The orders are not scheduled to take effect until September 6, but challengers moved fast. A Maryland judge heard an injunction request on August 28, and a related motion remains pending in New Hampshire.
At the Maryland hearing, Judge Deborah Boardman declined to issue a temporary restraining order, but only on procedural grounds. The plaintiffs' lawsuit did not reference the new executive order, giving Boardman a technical reason to hold off. Her comments from the bench, however, sent a clear signal about where her sympathies lie.
"As far as I can tell, this is unprecedented," Boardman said of the new order. She pressed the government on whether the Supreme Court's June ruling left any room for the kind of exceptions Trump's order attempts to create. Boardman set an expedited briefing schedule, suggesting she intends to revisit the question quickly.
The scale of the issue the birth-tourism order addresses is real but limited. An estimated 26,000 births out of roughly 3.5 million annual U.S. births qualify as birth-tourism cases, according to the Migration Policy Institute. Staff secretary Will Scharf alleged that criminal rings are organizing systems for thousands of people to come to the United States purely to obtain birthright citizenship, a claim that, if proven, would strengthen the administration's fraud rationale.
The administration also plans to ask the Supreme Court to rehear the broader birthright citizenship case, a long-shot move that would require the justices to revisit a decision they issued just months ago. If both the executive orders and the rehearing bid fail, the remaining path would run through Congress: either new legislation or a constitutional amendment, which would require approval by three-fourths of the states.
The legal landscape is clearer now than it was before the June ruling. The Supreme Court drew a firm line: children born on American soil to parents here unlawfully or temporarily are citizens. Six justices said so. The administration's new orders deliberately avoid crossing that line. They target terrorists, foreign-government employees, and people who entered the country through fraud, categories the White House believes fall within exceptions the Court itself has long recognized.
Whether federal judges agree that a 128-year-old exception for children born during a hostile military occupation extends to members of designated terrorist organizations is the central question. Supporters call it a natural reading of established precedent. Critics call it a stretch that would hand the president unilateral power to define the boundaries of citizenship, a power the Constitution reserves to Congress and the amendment process.
The birth-tourism order may face a smoother path, resting as it does on visa authority rather than a constitutional reinterpretation. No one has a constitutional right to a U.S. visa, and the executive branch has broad discretion over who gets one. The harder sell is the first order, the one that asks courts to accept that the enemy exception in Wong Kim Ark covers people who were never part of an occupying army.
The White House did not respond to a request for comment.
If the administration's narrower strategy works, it will prove that the Supreme Court's June ruling was not the final word, just the opening of a longer fight over who counts as an American at birth. If it fails, the lesson will be simpler: executive orders cannot rewrite the 14th Amendment, no matter how carefully they are drafted.
