Trump is looking for the Court’s breaking point on birthright citizenship

Last week, President Donald Trump issued a new executive order that purports to strip citizenship from some Americans.

This isn’t our first time here: Last year, Trump issued an executive order that attempted to strip citizenship from many Americans born in this country. Months later, in response to a lawsuit brought over Trump’s order, the Supreme Court reaffirmed that everyone born in the United States who is subject to US law is a citizen. The Court’s decision in Trump v. Barbara (2026) was hardly a surprise, as the Court first ruled that everyone born in the US and subject to its laws are citizens in United States v. Wong Kim Ark (1898).

Still, the Barbara decision did invalidate an executive order from Trump. And that made him very angry. The new order appears to be a response to that 2025 Supreme Court decision, though it is much narrower than his original one.

In this sense, Trump appears to be experimenting with where the line is for the justices when it comes to birthright citizenship. When Trump’s first order came before the Court in Barbara, there was more than a century of precedent establishing that the order was unconstitutional. Nevertheless, four justices voted to overrule at least some of that precedent.

Now, with the new order, Trump is testing whether a smaller bite at the apple is enough to win over one of the justices who voted with the majority in Barbara — two of whom are Republicans. If he manages to hold onto the four dissenters in Barbara and pick up just one more justice’s vote, his new order will stand. It’s a plausible outcome, and one that could potentially foreshadow future efforts to chip away at birthright citizenship.

What does the order actually do?

Trump’s first citizenship order, the one struck down in Barbara, attempted to strip citizenship from many Americans whose mothers were either undocumented or legally-but-temporarily present in the United States when they were born. Had this order been in effect at their birth, it would have stripped citizenship from many prominent Americans, including former Vice President Kamala Harris.

The new order, entitled “Continuing to Protect the Meaning and Value of American Citizenship” is much narrower; indeed, it’s unclear some of the categories of people it hopes to denaturalize actually exist. The new order, for example, purports to strip citizenship from children of two non-citizen parents when either parent belongs to a “designated Foreign Terrorist Organization.”

So, in the unlikely event that, say, a member of Al-Qaeda impregnated a non-US citizen woman who later gave birth on US soil, Trump’s order would mandate that the child’s US citizenship would be taken away.

Another provision purports to strip citizenship from the children of foreign nationals who work in their nation’s embassies or in similar diplomatic capacities but who do not enjoy diplomatic immunity from US law. Again, it’s unlikely that all that many children fall into this category, given the relatively small number of these jobs.

The largest group of people that Trump targets in his new order is children whose parents “engage in a commercial transaction to ensure that the person’s mother is present in the United States” for their birth, such as by buying a plane ticket to enter the United States while pregnant. But this category is also fairly small.

In 2024, the Centers for Disease Control and Prevention reported that 9,576 people were born in the United States to residents of foreign countries — out of about 3.6 million annual births — though it is unclear how many of these babies would be affected by Trump’s new executive order, because we don’t know if their mothers entered the United States “to ensure” that their child we be on US soil when born.

So, what does the Constitution actually say about birthright citizenship?

The question of whether people born in the United States are citizens was, until fairly recently, one of the most uncontroversial questions in US law. When Judge John Coughenour, a Reagan appointee, handed down the first court decision blocking Trump’s original attack on birthright citizenship, he commented that he’d “been on the bench for over four decades [and]…can’t remember another case where the question presented is as clear as this one is.”

The relevant provision of the Constitution’s 14th Amendment provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” So, everyone born in the US, regardless of their parent’s immigration status, past behavior, or membership in a particular organization are citizens — unless they are not “subject to the jurisdiction” of the United States.

As the Court recently reaffirmed in Barbara, moreover, a child is within US jurisdiction if they are “subject to American law.” So, if undocumented immigrants and their children were not subject to US jurisdiction, that would mean that it was illegal to arrest and deport them. And, if members of foreign terrorist organizations were not subject to US law, that would mean that it is illegal for the US government to prosecute them for committing terrorist acts.

That said, Wong Kim Ark did recognize a few narrow categories of individuals who are present in the US but not subject to its laws — two of which are still relevant today. Children of invading foreign armies do not receive birthright citizenship, nor do children of foreign ambassadors and other diplomats who are immune from US law.

As the Court clarified in Barbara, both of these exemptions are derived from an old English rule that provided that the King could not convey citizenship to “those born in lands that he did not control.” Thus, when a foreign military occupied English soil and stripped the King of his ability to rule over those lands, children born to members of that military were not citizens.

The exemption for ambassadors and some other foreign diplomats, meanwhile, flows from what Barbara described as a “fiction of extraterritoriality.” While senior diplomats are present in the United States, they are nonetheless deemed to “remain on foreign soil” and thus are not subject to US law.

But not all employees of foreign governments qualify for this diplomatic immunity. Consider, for example, the tragic facts of Moncada v. Rubio (2025), a recent federal appeals court decision holding that a man who lived as a US citizen for nearly seven decades was not, in fact, a citizen.

Roberto Moncada is the son of a Nicaraguan diplomat who worked in the United Nations when Moncada was born in 1950. The US government previously concluded that Moncada’s father served as a “consul” when his son was born, and, thus, Moncada was a US citizen, because consuls and their families do not enjoy diplomatic immunity. But, in 2018, the US government discovered that Moncada’s father was actually an “attaché,” a more senior diplomat who does enjoy immunity. And then, the father’s diplomatic immunity cut the son off from US citizenship.

Under these principles, several provisions of Trump’s new executive order are unconstitutional, at least in part. The provisions stripping citizenship from the children of employees of foreign governments are lawful to the extent that they apply to children of people with diplomatic immunity but unconstitutional to the extent they apply to lower-ranking individuals with no immunity.

The provision dealing with members of foreign terrorist organizations is also unconstitutional, since people who engage in terrorism on US soil are very much subject to US law — as are babies born on US soil to parents connected to terrorism. Although, in the unlikely event that a foreign terrorist group actually seized control of some portions of US soil, then the exemption for children of invading armies would likely apply.

The provision dealing with so-called “birth tourists” is also unconstitutional, because a pregnant woman who enters the United States to ensure that their child is a US citizen is subject to US law, as is her child.

Indeed, Trump appears to concede this later point in a separate executive order handed down at the same time as his “Continuing to Protect” order. The second order, entitled “Ending Birth Tourism,” instructs two federal cabinet departments to update their rules to discourage alleged birth tourists from entering the country, including by taking “appropriate action to prevent the entry into the United States of, or the granting of any visa or other travel authorization” to such individuals. But, again, if the United States has the power to deny visas or otherwise bar these individuals from entering the country, that means that they are subject to US jurisdiction.

Why Trump keeps trying to restrict birthright citizenship

So, the Constitution’s text, the Court’s venerable decision in Wong Kim Ark, and its brand new decision in Barbara are all clear about who qualifies for birthright citizenship. All of these authorities establish that much of Trump’s new executive order is unconstitutional, because it purports to strip citizenship from people who are subject to US jurisdiction.

But that doesn’t necessarily mean that the order will be struck down. While Barbara did little more than reaffirm the same rule the Court announced nearly 130 years ago in Wong Kim Ark, four justices dissented in Barbara — although, these justices also released four separate opinions with four separate definitions of who does and does not qualify for birthright citizenship. So, on this Supreme Court, the mere fact that a legal question has been settled for more than a century does not prevent many of the justices from voting to unsettle it.

Indeed, this Court does not even reliably follow its own recent precedents. The Court’s decision in Louisiana v. Callais (2026), which repealed a 1982 amendment to the Voting Rights Act and limited Congress’s power to prevent race discrimination in elections, was wholly at odds with the Court’s three-year-old decision in Allen v. Milligan (2023). The Court’s decision in Medina v. Planned Parenthood (2025), which repealed a federal law permitting Medicaid patients to choose their own doctors, cannot be squared with its decision two years earlier in Health and Hospital Corporation v. Talevski (2023).

So, while two of the Court’s Republicans joined all three of its Democrats in Barbara, it is possible that at least one of those Republicans will vote with the dissenters on a narrower question, like whether Trump can strip citizenship from the children of so-called birth tourists. And even if all of the justices in the Barbara majority hold the line, if one of them leaves the Court while Trump is still in office, he will almost certainly replace them with someone who opposes birthright citizenship.

So, while Trump’s executive orders often defy the Constitution’s explicit text, Trump also understands something important about US law: It doesn’t actually matter what the Constitution says if you have five votes on the Supreme Court who are willing to do what you want them to do.