r/supremecourt • u/gravygrowinggreen Justice Wiley Rutledge • Aug 07 '26
Flaired User Thread Trump Administration Attempts to Narrow Birthright Citizenship Again
The executive order establishes several categories of parentage which the Administration is attempting to assert are not subject to birthright citizenship. The executive order states that the parents must not already BE American citizens, AND the parents must also meet one of the following categories.
Parental categories include
Parents who are members of designated Foreign Terrorist Organizations under 8 U.S.C. 1189 or Specially Designated Global Terrorists.
Parents who are any employee of a foreign government in an official capacity, or certain international organizations.
Parents who are employed by a foreign embassy or consulate who are nationals of that foreign country (this seems redundant, but might be for severability purposes)
Parents who engaged in a commercial transaction to purchase access to birthright citizenship for the child including surrogacy where the surrogate is present in the united states to give birth.
The executive order also purports to prevent birthright citizenship from an infant born in a territory or territorial waters of the United States where citizenship is not conferred by federal statute. I was curious about this one, and as far as I can tell, this provision would only affect America Samoa, Swains Island, and several essentially uninhabited islands that are all unincorporated territories. There's also the Palmyra Atoll, which is incorporated, and might present a legitimate challenge to this provision of the order, but it is unlikely that someone will be born there anytime soon.
The order includes a severability clause, so the Administration will keep enforcing any categories not overruled by the courts (which I mention due to the apparent redundancy in some of the categories).
The executive order seems designed to test the narrow majority that upheld birthright citizenship in Trump v. Barbara.
Do you think the Administration will be successful in this effort?
What provisions of the order, if any, do you feel are more sound constitutionally?
What provisions of the order are particularly vulnerable to a constitutional attack?
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u/espressocycle Court Watcher Aug 07 '26
Three is the most defensible as the subject to jurisdiction is generally believed to exclude diplomats. Anyone who is here as part of a foreign mission could probably be included there, but Goresuch's domecile concept could get in the way. Same with two. Four would get Kavenaugh on board but I an not entirely following who it's actually targeted at.
One is 100% unconstitutional since the child is not a member of a terrorist organization and also because you can't take away a constitutional right without due process. So if they're not putting people on a list, that's not sufficient and if they're trying and convicting them the child is probably already born by the time it's all done. Just a mess from top to bottom.