Just five weeks after the Supreme Court rejected the Trump Administration’s first attempt to end birthright citizenship in its Trump v. Barbara decision, the President has signed two new executive orders on August 6 designed to accomplish a more limited version of the same objective through a new legal theory.
The first one attempts to, once again, deny citizenship to some babies born in the United States – not because of anything they did, but because of allegations about their parents’ conduct and intent in traveling to this country. The other targets so-called “birth tourism.”
At the signing, the President and Deputy Chief of Staff Stephen Miller took questions from reporters. As part of their statements and answers to questions, they made several claims that are demonstrably false, plus one so incoherent it barely qualifies as a claim at all.
Before we get to the made-up historical and legal references, let’s be clear about what the orders actually do because the mechanics are the real story, and the mechanics are, once again, bad for innocent children regardless of who is speaking in the Oval Office.
Whatever one thinks about immigration policy, this new executive order on birthright citizenship is not aimed at people crossing the border today. It is aimed at babies born tomorrow. The legal question isn’t simply what the government thinks about immigration. It’s whether an innocent child can lose fundamental rights grounded in the Constitution because of something government officials allege about a parent’s conduct and intent.
The Fundamental Problem with Trump’s Latest Actions
Apply the One Question — “is it good for the children?” — and the first executive order fails immediately, on its own terms.
The order directs agencies to withhold citizenship recognition from a child, where neither parent is a citizen, if either parent falls into one of several categories, including someone who “engaged in a commercial transaction to purchase or access birthright citizenship for the person.”
First, the Supreme Court made clear that birthright citizenship is exactly what it says it is. As Supreme Court Justice Amy Coney Barrett said during oral arguments:
They don’t focus on the parents. It’s the child.
However, in this new executive order, the Administration is trying to condition an innocent newborn’s citizenship – the single most consequential legal status a child can hold – on an accusation about what a parent did. As a result, a child’s legal status would become conditional and questioned until a dispute about the parent’s conduct gets settled. It treats children as instruments of their parents’ immigration history rather than as people with independent rights of their own – the same error this Administration has used with respect to detention, Plyler, and nearly every other child-specific or child-adjacent immigration order of the last eighteen months.
The “commercial transaction” language, in particular, is a loophole factory. The order defines it to include when a parent “engage[s] in a commercial transaction to ensure that the person’s mother is present in the United States... to give birth.”
The phrase “commercial transaction” may sound narrow, but it isn’t. The order defines it broadly enough that ordinary expenses associated with travel – a plane ticket, hotel reservation, or a visit to a doctor – could become evidence in a future dispute over a baby’s citizenship. This goes well beyond the organized “birth tourism” operators the “birth tourism” second order describes.
Again, birthright citizenship has always been determined at birth. Instead, this order seeks to create a new system in which a newborn’s citizenship can remain in limbo while the government investigates a parent’s actions and intent. No baby crossed the border with intent, but it is that innocent child who would be punished by the government. The Administration is, once again, fundamentally trying to change whose conduct and action determine a child’s constitutional status and life chances.
The second order, Ending Birth Tourism, is narrower and uses visa authority under INA §215(a) to deny entry or revoke visas for people found to be traveling for the purpose of giving birth. There are already rules on this matter, but this places enforcement through a consular officers guessing at intent, with a “humanitarian grounds or national interest” exemption left entirely to the discretion of the Secretary of State or Secretary of Homeland Security. No court review. No defined standard. Just “as determined by.”
The two orders are not the same. The one about “birth tourism” is primarily concerned about visas policy and how the government decides who may or may not enter the country. The other one is much broader because it attempts to determine whether some babies born on American soil should or should not receive citizenship that the Constitution has guaranteed since 1868. Even if someone supports stricter visa enforcement, that does not justify imposing life-long punishment to an innocent child born here.
That would seem to present a permission structure for sweeping, unreviewable decisions about who gets to be American, applied retroactively to newborns who had no say in how their parents traveled.
The Nonsense They Said in the Oval Office
Then there was the press conference itself, where the administration didn’t just defend the policy — it misrepresented the history and the law behind birthright citizenship numerous times.
Here is the video of the White House event.
First, as background, United States v. Wong Kim Ark (1898) and Trump v. Barbara (2026) are the controlling Supreme Court precedents on birthright citizenship, and neither turned exclusively on race or on the aftermath of slavery. The man at the center of the Wong Kim Ark decision was born in San Francisco to Chinese immigrant parents who were legally barred from ever becoming citizens themselves under the Chinese Exclusion Act.
The Supreme Court ruled he was a citizen anyway, holding that the Fourteenth Amendment “was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States.” In other words, the Supreme Court had the opportunity to exclusively limit birthright citizenship to formerly enslaved families and they have explicitly rejected doing so on numerous occasions, including five weeks ago.
Stephen Miller told reporters this history “had no other meaning and purpose” than covering the children of freed slaves. He’s blatantly wrong, and not in a debatable way — he’s contradicted by the actual text of the Court’s own 6-2 opinion.
The President’s claim that the U.S. is “just about the only country” with birthright citizenship is also false, and it isn’t new. Trump has made this claim repeatedly, which the press has repeatedly fact-checked. The reality is that roughly 30 countries offer unconditional birthright citizenship, including Canada, Mexico, and most of Central and South America.
The President also referenced a rather bizarre story about a family with 98 children. Even if that were to be true, it literally has no bearing on how birthright citizenship works.
Citizenship is determined child by child at birth, not accumulated through some made-up family-based accounting system. Birthright citizenship is about real babies born on U.S. soil, who are protected by the Constitution. Whatever the point the President was trying to get at, it wasn’t about birthright citizenship or even birth tourism.
Since the order attacking birthright citizenship is actually attacking innocent children, who have done nothing wrong, the goal is to demonize parents, even if doing so is through outlandish and irrelevant claims.
Here Is What’s Actually True
The part of this story that isn’t in dispute: the new order on birthright citizenship would attempt to condition a newborn’s citizenship status based on their parents’ conduct and intent, administered through vague language and unreviewable executive discretion. The latest effort to gut a fundamental constitutional operating principle since our nation’s founding, but has been written clearly in the Constitution since 1868, is being sold to the public with pathetic history and legal arguments the Supreme Court itself rejected 128 years ago and early this year.
Every administration has the authority to enforce immigration laws. However, none have the authority to rewrite the Constitution and statutory language by redefining which babies they deem are precious and which are pushed into the shadows of our society.
This is exactly what the Constitution’s Fourteenth Amendment sought to end.