President Donald Trump signed two executive orders on August 6 that reopen the fight over birthright citizenship on much narrower ground. Continuing to Protect the Meaning and Value of American Citizenship directs federal agencies to withhold recognition of United States citizenship from four categories of children born on American soil. Its companion, Ending Birth Tourism, goes after the trade in US births.
Both landed five weeks and two days after the Supreme Court struck down Executive Order 14160 in Trump v. Barbara. That ruling held that children born on US soil to parents unlawfully or temporarily present are citizens under the Fourteenth Amendment.
At the Oval Office signing, Trump described the June decision as “very, very unfortunate” and said his administration was making adjustments.
Neither order challenges the constitutional holding head-on. Each works inside the historical exceptions the Court acknowledged, and one category has no precedent in this debate.
Adam Juchniewicz, CEO of 21 CBI, spent 12 years working on immigration policy at the Department of Homeland Security, and reads the pair as damage control. “These executive orders are the immigration-policy equivalent of putting a Band-Aid on a bullet wound,” he argues.
What arrived in place of a policy response was, on his account, “another executive order trying to accomplish through clever wording what he could not accomplish constitutionally.” That makes it “legally dubious, intellectually lazy, and exactly the kind of policymaking you get when the desired political headline comes before the law.”
Four Categories, All Requiring That Neither Parent Is a Citizen
The citizenship order applies only where neither parent of the child holds US citizenship. Within that limit it names four situations, and calls the list non-exhaustive.
Three turn on what either parent is or did: An alien enemy, a foreign government employee, or someone who purchased access to birthright citizenship or committed citizenship fraud. Only the fourth turns on place: Birth in a US territory or territorial waters where federal statute does not confer citizenship. One qualifying parent is enough.
That carve-out is narrower than the one in Executive Order 14160, which spared any child with a citizen or lawful permanent resident parent. This order spares only children with a citizen parent. Green card holders sit inside its reach.
“Alien enemy” is defined by reference to designation lists, covering members of a Foreign Terrorist Organization designated under 8 U.S.C. 1189 and Specially Designated Global Terrorists. Foreign government employees include ambassadors, plus embassy and consulate staff who are nationals of the sending state. It also reaches anyone employed by a foreign government in an official capacity, along with staff of international organizations who hold international-organization immunity.
Children of accredited diplomats already fell outside the citizenship clause. Thursday’s order stretches that category well past ambassadors, into locally engaged consular staff and international civil servants.
Its territorial provision restates existing law more than it changes it. American Samoa is the only place where people born on US soil are nationals rather than citizens, a status fixed by federal statute rather than by this order.
Payment as the Disqualifying Fact
The third category is where the order breaks new ground. It reaches any parent who “engaged in a commercial transaction to purchase or access birthright citizenship” for the child. Two arrangements are spelled out: Paying to place the mother in the United States or one of its territories to give birth, and paying a surrogate present there to do so.
Surrogacy had not surfaced in the administration’s birthright citizenship case before this week. Senator Rick Scott introduced a bill on November 5, 2025 aimed at foreign adversaries using American surrogacy law, though the practice stayed at the edge of the debate until Thursday.
That construction sidesteps the jurisdictional theory the Court rejected in June. Instead of putting the child outside US jurisdiction, it files the parents’ payment alongside fraudulent activity to obtain citizenship. Naturalization obtained by deception can already be revoked, and the order borrows that principle.
Lawyers challenging the order will point out that the Fourteenth Amendment claim belongs to the child, not to the parents. Nothing in the text sets out a procedure by which a family could contest an agency’s finding that a commercial transaction took place. Boilerplate in both orders disclaims any right enforceable against the government, which does not bar a constitutional challenge but leaves a family nothing to invoke either.
Visa Denials, Permanent Bars, and Action Against Operators
The second order defines birth tourism twice over. One limb covers entry on a nonimmigrant visa for the purpose of giving birth on American soil.
Its companion limb covers any effort by a foreign national to facilitate such entry for another. Both turn on purpose, which officers must infer.
Authority under section 215(a) of the Immigration and Nationality Act passes to the two secretaries. They may refuse visas, revoke them, impose permanent entry bars, remove people who have engaged in the practice, and act against the organizations that enable it inside or outside the United States. Humanitarian and national-interest exemptions stay at each secretary’s discretion.
Much of this machinery already exists. A 2020 State Department rule created a ground of inadmissibility for visitors traveling primarily to give birth, and applying for a visa solely to secure citizenship for a child has long counted as fraud. Immigration and Customs Enforcement opened an investigative effort against birth tourism networks in April.
Juchniewicz’s years at Homeland Security make that redundancy conspicuous to him. The federal government, he points out, “already has an enormous toolbox for combating birth tourism: visa denials, inadmissibility, fraud and misrepresentation findings, visa revocations, enhanced screening, and refusal of admission.”
What the toolbox lacks, on his reading, is an operator. “Trump does not need to invent a new interpretation of the Fourteenth Amendment. He needs an administration competent enough to use the immigration laws already on the books,” Juchniewicz argues.
Redefining citizenship instead, in his comparison, amounts to “burning down the house because you cannot figure out how to lock the front door.”
Its preamble supplies the framing. Citizenship, the order states, is “not a commodity to be acquired through calculated exploitation and evasion” of the immigration laws.
9,600 Births by One Count, 26,000 by Another
No official tally of birth tourism exists. Centers for Disease Control and Prevention natality data recorded almost 9,600 births in 2024 to mothers listing an address outside the United States and its territories, against roughly 3.6 million births nationwide.
The Center for Immigration Studies puts the annual figure between 22,000 and 26,000, an estimate the Migration Policy Institute (MPI) describes as contested. Package prices reportedly run from US$20,000 to US$100,000.
Scale is what separates the two rounds of executive action. MPI calculated that Executive Order 14160 would have left an estimated 255,000 children a year without citizenship at birth, and the categories in Thursday’s order are far narrower. In the Northern Mariana Islands, where visa-free entry drew roughly 600 tourist births in 2018, the territory’s delegate to Congress reported 47 in 2025.
Agencies Have 30 Days to Publish Guidance
Every executive department and agency must issue public guidance on implementation within 30 days, putting the deadline in early September. Enforcement falls to the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security.
The order names no effective date and no prospective-only limit, leaving open whether it reaches children already born. Its predecessor had applied only to births after a fixed date.
Both orders also carry severability clauses, which ask a court striking one provision to leave the rest standing. Legally, the four categories are uneven, and severability is the drafting choice that lets the strong ones outlive the weak.
Litigation is expected. Cody Wofsy, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, responded that no executive order “can change the meaning of the constitution”. In the days after that ruling he had told reporters he did not expect a second attempt.
Juchniewicz reads the sequel as an exercise in framing. “Whatever your politics, this is not serious immigration policy. It is bad law dressed up as toughness,” he says.
Having lost the central constitutional argument, the administration is, in his reading, “nibbling around the edges of the decision and hoping that calling something ‘birth tourism’ somehow changes what the Fourteenth Amendment says.”
He leaves the White House two exits. “If the goal is stopping people from abusing tourist visas to give birth in America, enforce the visa laws. If the goal is overturning birthright citizenship without amending the Constitution, stop pretending an executive order is a substitute for the constitutional process.”
David Lesperance, managing director of Lesperance & Associates, sees a calculation about November rather than about the courts. Trump “has made another ultimately futile attempt to override the US constitution with a Sharpie signature on an Executive Order,” he maintains.
He argues that the president “knows it will fail in the courts but he hopes it will boost Republican chances in the rapidly approaching midterms by throwing this red meat to the MAGA faithful.”
For globally mobile families, the practical question is which jus soli jurisdictions stay reliable. Unconditional birthright citizenship survives in a limited group of countries, most of them in the Americas.
Birth abroad remains the cheapest citizenship a family can add. In the United States, paying for the trip is now the fact that can void it.
