Trump’s New Executive Orders Limit Constitutional Birthright Citizenship
- intnllawsociety
- Aug 17
- 5 min read
Updated: 10 hours ago
By Cady Wu
On August 6, 2026, Trump issued two new executive orders, targeting what is known as “birth tourism”: a term used to describe foreign nationals entering the U.S. to give birth so their child receives U.S. citizenship. The new executive orders, which are meant to place restrictions on those who can receive birthright citizenship, follow the Supreme Court decision in late June that previous executive orders to limit birthright citizenship for undocumented immigrants was unconstitutional. Now, new executive orders have now been signed by the president to restrict the group of people who could qualify for birthright citizenship. Yet although there is validity to the argument behind the administration’s goals—to limit abuse of the immigration system by cracking down on illegal groups attempting to cheat the system—the executive orders violate the 14th Amendment of the Constitution by restricting birthright citizenship, while birth tourism remains a minuscule problem.
Following the Civil War, the 14th Amendment was first adopted, primarily in the context of granting formerly enslaved people and their descendants' citizenship. The citizenship clause in Section 1 of the 14th Amendment, states that “all persons born or naturalized in the United States, … are citizens of the United States,” defining U.S. citizenship as by birth, or through other naturalization processes. In 1898, the case of U.S. v. Wong Kim Ark was settled by the Supreme Court, which affirmed that birthright citizenship would also apply to children born in the U.S. to noncitizen parents, hence protecting the children of alleged birth tourists under the Constitution. Birth tourism itself is not the same as undocumented immigration or unexpectedly giving birth, but rather, refers to the practice of foreign nationals traveling to the U.S for the sole purpose of giving birth, and occurs, allegedly, often among businesses built on birth tourism. Because birth tourism is limited to migrants with the specific intention of giving birth, complications arise when distinguishing between those who are traveling for leisure, work, or those who have the intention to be a birth tourist.
To combat alleged birth tourism, the Trump administration has since released two new executive orders, which would exclude children from being eligible for birthright citizenship. This would include children of foreign government staff in the U.S., the children of mothers who lied about their intentions for visiting the country while pregnant, and children whose parents are terrorists or “alien enemies”—while the president has also attempted to exclude children born in U.S. territories, those steps would first require congressional action. In addition to the executive orders, White House staff secretary Will Scharf said that they were also moving to deny visas to visitors suspected of coming to the U.S. for the sole purpose of giving birth. In essence, it could place more restrictions on foreign nationals entering the U.S. under any suspicion of birth tourism, affecting certainty surrounding visa issuance, admission to the U.S., as well as broader trends under government recognition of birthright citizenship. While Scharf argued that the executive orders aligned with the Supreme Court’s previous decision, critics say that the orders still attempt to restrict certain groups of people from obtaining birthright citizenship, which is still unconstitutional.
Hence, the central constitutional problem with the executive orders is whether the president can create exceptions to birthright citizenship. Although the Trump administration argues that the amendment has only supported citizenship among formerly enslaved people, its interpretation in reality has been challenged by courts, such as in U.S. v. Wong Kim Ark. While the president has broad authority to enforce immigration laws, that authority does not include the power to create any laws or independently change the meaning of a Constitution; hence, allowing an executive order to create new exceptions to a constitutional right. This could also raise significant concerns over separation of powers, particularly because constitutional amendments are difficult to change.
But more significantly, birth tourism as a problem must be examined, as it is the main concern underlying the administration’s choices to pass the executive orders. The administration’s argument for targeting birth tourism itself raises questions about the scale of the problem—while studies can vary significantly due to government secrecy, many have suggested that while birth tourism does occur through businesses that arrange travel and accommodations for foreign nationals who intentionally come to the U.S. to give birth, even higher estimates represent birth tourism as less than 1 percent of the more than 3.5 million births that occur in the U.S each year. Hence, the existence simply of birth tourism there does not establish a widespread threat to the country’s immigration system. Adjacently, birth tourism must also be distinguished from other situations involving foreign visitors who give birth in the U.S.; someone entering legally for tourism, work, or another purpose and unexpectedly giving birth in the country is not considered a birth tourist. Therefore, because determining a person’s original intentions can be difficult, broadly targeting suspected birth tourism could create uncertainty for foreign visitors and immigration officers.
Instead, critics argue that to target birth tourism, other measures can be put into place, such as regulating visa applicants with pregnant women more strictly, upholding enforcement measures against fraudulent statements, and holding investigations or taking action against alleged birth tourist businesses. Rather than taking a relatively broad action to target a specific issue, policies and measures to target specifically birth tourism, rather than revoking the rights of birthright citizenship from the Constitution would hence be more effective. Beyond constitutional questions, the executive orders themselves could also create other consequences, with uncertainty over what evidence is necessary to establish intentions besides birth tourism, and inconsistent enforcement, especially with a lack of clarity from the administration over what “alien enemies” suggest. Enforcement, in this regard, should focus on fraud or misuse of immigration procedures, rather than enforcing revocations of birthright citizenship.
Ultimately, the new executive orders raise a broader question about the limits of presidential power. The Trump administration has increasingly relied on executive orders to pursue major changes in government policy, especially when surrounding its agendas of immigration enforcement, and the newest birthright citizenship orders reflect a larger objective of cracking down on immigration as a whole. If the orders are upheld, they could establish a broader precedent for future presidents to broadly reinterpret constitutional rights under the guise of executive action. However, if rejected by ongoing litigation from groups like the American Civil Liberties Union (ACLU) and officials from states, courts could reinforce the principle that executive orders cannot independently create laws or override constitutional protections. Ultimately, narrower enforcement of existing immigration laws could help to address fraudulent activity while preserving the constitutional framework, allowing conduct without restricting birthright citizenship itself.
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