President Trump's new attempt to cabin birthright citizenship is a lot narrower than the one the Supreme Court struck down in June. Its key provisions are still unconstitutional.
I have a third theory why Trump is trying this. One reason the Supreme Court ruled as it did in Barbara is it had no real choice if it was to maintain a facade of impartially ruling on the law and the Constitution - the text of the Constitution is just too clear. By making up some scenarios that may not be as obviously wrong to the casual observer, Trump is hoping the Supreme Court will feel more entitled to rule in his favor.
That may be. Another possibility is to provide ammunition for political advertisements against Democrats. You can almost see the Fox News headlines: "Dems want to allow foreign terrorists to come here to give birth to forge legal connections to the U.S."
Apologies for once again annoyingly quibbling—especially inapt for a newsletter about a court that disdains mere error correction—but the five pivotal words quoted from the Barbara decision are actually six words.
That occurred to me, too. Also, the people we rounded up and put in Guantanamo Bay prison, for example. In practice if not in theory, U.S. jurisdiction extends throughout much of the world.
I’m glad you alluded to the distinction between diplomatic immunity and the more limited consular immunity. But how is the latter to be categorized for the purposes of citizenship? Those with consular immunity are partially removed from host-country jurisdiction— they enjoy immunity for their professional conduct and for unbroken travel between their offices and home (a long-argued case involving a U.S. consular office that had struck a pedestrian with his car turned on the fact that the officer had stopped at a gym on the way home).
How long will it take until a non-diplomatic embassy employee kills a US citizen and argues immunity from prosecution on the basis of this EO? Maybe the prediction markets can weigh in…
Would the employee have immunity from U.S. prosecution if the killing took place in the foreign country's embassy in the U.S.? I thought that embassies are considered foreign territory for legal purposes (but I'm not a lawyer and I could be wrong).
It also moves the Overton Window in that the original EO purported to reach children with no parent who was a citizen *or* a Legal Permanent Resident. This one dispenses with the latter exception. It is another move in the direction of trying to make citizenship a matter of blood and descent (jus sanguinis) instead of where you are born.
Agree that it's as much about messaging (particularly to a GOP base that hasn't had a lot of public wins recently) as the practical effects. It also drains the Courts capital on other cases, similar to how the 5th Circuit is the "most overruled" but those losses are designed to shape the future fights/allow less-objectionable precedent through.
Lawfare had a good analysis of the ODNI purges, which might not have happened, along these lines, and I consistently think it's a throughline for both Trump and Ron DeSantis: manufacturing fodder for Fox News is a key governing strategy. Being snarky to students, endless executive actions as a messaging tactic.
Is there anything to an argument rendering innocent babies born stateless, through no fault of their own, and having rights denied to them their whole life? Where is the humanity in that?
Concerning the birth tourism, which premises a denial of citizenship on the (supposed) fraud of the parents. Is this an unconstitutional bill of attainder? Punishing the child due to the crime of the parents is squarely inside bill of attainder; the only questions would seem to be whether denial of citizenship is a punishment, and whether the supposed fraud is criminal.
I have a question about the surrogacy issue, about which I know little (and I'm not a lawyer).
Suppose a woman who is a U.S. citizen acts as a surrogate for a foreign woman, traveling outside the U.S. to be implanted with a fertilized egg and then returning to the U.S. to give birth. Would Congress have the authority to regulate the act of bringing the "foreign" fertilized egg into the U.S., for example via Customs/importation regulations? I'm assuming that the fertilized egg is legally considered a mere material object, not a person. Likewise if the fertilized egg is shipped to the U.S. for implantation in the American woman.
In the alternative scenario where the foreign couple comes to the U.S. and creates a fertilized egg that's implanted in the American woman, would Congress (or State legislatures) have any authority to regulate that particular kind of medical procedure? I doubt it, but I have no legal expertise.
[Added later] An especially "Trumpian" approach would be to put very high tariffs on the importation of fertilized eggs created by foreign couples!
It doesn't help that this EO doesn't define parent. Neither does 8 USC 1433 (citizenship for children born outside the US). The Jan 2025 EO said biological parent (although in the surrogacy case, whose biology counts more, the ovum or womb?)
I think the term "biological parent" refers to the genetic parents, though I'm no expert. The surrogate mother is presumably considered a mere vessel.
By the way, if the fertilized egg was considered a person (which it isn't under U.S. law), a surrogate mother returning to the U.S. after having the egg implanted elsewhere might be charged (by the Trump administration) with human trafficking! The possibilities are endless.
Another philosophical point I find interesting is the relation of birthright citizenship to Anabaptists' views on baptism. Birthright citizenship traces back (in part) to the notion that the newborn child owes allegiance to the U.S. (and vice versa), as in the time of the kings of jolly old England. Somewhat analogously, in the Catholic Church baptism occurs shortly after birth. A newborn child cannot, of course, affirm any allegiance to a country or Church. Anabaptists thought that people should only be baptized as adults so that they can given informed consent (so to speak), and they were often punished or killed for their heretical views. In this respect, the European approach to birthright citizenship is roughly analogous to the Anabaptists' approach to baptism.
At the risk of sounding too cynical, I suspect that one of the reasons for Trump overtly challenging the Court's ruling on birthright citizenship is political: To keep the issue alive for the upcoming midterms and raise particularly inflammable and specious scenarios to use as a red flag to wave in front of his voters. Its a preposterous argument, but a simple one and win or lose Trump hopes it will make him look like the guardian at the gate who is standing alone to stem a tidal wave (or is the metaphor still an "invasion") of pregnant women coming into the Country to claim birthright citizenship for the children.
If this doesn't work, look for Trump to announce that he has uncovered documents from the deep state which prove that aliens have arrived and that only he can save, not merely the country, but the planet from ET.
I suggested something similar in my reply to Richard. Trump might be thinking "Maybe the Supreme Court will buy it this time, but if not, we can get good political advertising out of it."
Regarding pregnant women coming here to claim birthright citizenship for their children, I don't know how many did that when we had more porous borders, but many people may not realize that it was a real phenomenon, whatever one thinks about birthright citizenship. At just one hospital in San Diego, California, there were about six per day on average according to someone I know who worked there, and word was that the women waited on the Mexican side of the border until they were dilated enough to not be turned away by the hospital when they arrived. It was apparently a carefully planned operation, day after day, and all the doctors and nurses knew it. Again, one may support or oppose that, but it's worth knowing that it wasn't just fabricated propaganda.
Birth tourism is a real thing. But it's not just women coming over the southern border. It's just that no one is politicizing the ones with a different complexion coming via plane. I personally find birth tourism distasteful, but I can understand the desire to provide a better potential future for your children.
I've heard about that but I haven't read any details. I'm not sure if the women crossing the southern border to give birth here count as "birth tourism" since I don't know how many of them come to stay and how many return home after giving birth. My point was only that that's a real phenomenon (at least it was before the border got squeezed tight).
I also understand why women would do come here to give birth. It makes sense from their point of view. But I personally question whether the Founders had "in-and-out" births in mind when they wrote the Fourteenth Amendment. The current Supreme Court ruled on it, so the legal question is settled (for now).
On the policy level, I find the European approach more sensible, but I wouldn't support Trump's executive orders or anything else he does. The fact that he's the driving force often makes it hard to discuss the issue impartially.
I wanted to read the WSJ interview with Justice Alito but hit the pay wall. I did get the title though, which refers to Alito's notion of "practical originalism" -- by which I guess he means: "originalism is practically anything that supports my political and religious beliefs."
Quite apart from your constitutional analysis, I assume the EO has the same flaw as the original: while it can be assumed that we know the citizenship status of the mother, can we say the same of the father? Does the EO specify?
Any woman with a noncitizen partner can claim (hopefully with his agreement) that the child is the result of an affair with a citizen. Some even truthfully. Some women may have a shortlist of possible fathers. Sex workers, especially noncitizen sex slaves, may not even have that opportunity. Anonymous surrogacy or sperm donor?
Also, the original EO applied to any woman and a father who is at least a resident alien. That's gone too.
Further comment: if the noncitizen wife if married or domestic partnered to a citizen husband, will he be presumed to be the father? Or are we in mandatory paternity test territory?
Administering this order would be such a clusterf*.
The question about genetic testing of the presumed father is interesting, but it also applies to the existing statutes such as 8 USC 1433 granting U.S. citizenship to children born in foreign countries if at least one parent is a U.S. citizen (among other conditions). I don't know if the U.S. government tries to independently confirm fatherhood by a U.S. citizen in cases where that's a requirement.
Good point. But, and I don't know how significant this is, the January 2025 EO explicitly defines the parents as biological (both of them) while 8 USC 1433 doesn't define the parent at all; the Definitions section (8 USC 1101) is also silent. Perhaps is was meant as common sense, or up to the AG to decide.
I think the people who write up Trump's EOs put out anything they think might possibly pass muster with the Supreme Court, without caring much about the details. And needless to say, their motivations aren't noble, but I do think there are a lot of interesting philosophical questions on this topic, if that's an appropriate way to phrase it.
The terrorist category is tricky given regime efforts to expand the material support statutes. If every Venezuelan or Yemeni in the country is considered a terrorist that would be a pretty broad sweep.
I have a third theory why Trump is trying this. One reason the Supreme Court ruled as it did in Barbara is it had no real choice if it was to maintain a facade of impartially ruling on the law and the Constitution - the text of the Constitution is just too clear. By making up some scenarios that may not be as obviously wrong to the casual observer, Trump is hoping the Supreme Court will feel more entitled to rule in his favor.
That may be. Another possibility is to provide ammunition for political advertisements against Democrats. You can almost see the Fox News headlines: "Dems want to allow foreign terrorists to come here to give birth to forge legal connections to the U.S."
Apologies for once again annoyingly quibbling—especially inapt for a newsletter about a court that disdains mere error correction—but the five pivotal words quoted from the Barbara decision are actually six words.
D’oh! Fixed. (And don’t apologize! I really should’ve caught that.)
“because he couldn’t be arrested, prosecuted, sanctioned, and deported; he was outside U.S. jurisdiction both formally and practically.”
Although, post-Maduro, it is less clear that would be true of anyone at all….
That occurred to me, too. Also, the people we rounded up and put in Guantanamo Bay prison, for example. In practice if not in theory, U.S. jurisdiction extends throughout much of the world.
I can think of no better edge case for our host to comment on!
I’m glad you alluded to the distinction between diplomatic immunity and the more limited consular immunity. But how is the latter to be categorized for the purposes of citizenship? Those with consular immunity are partially removed from host-country jurisdiction— they enjoy immunity for their professional conduct and for unbroken travel between their offices and home (a long-argued case involving a U.S. consular office that had struck a pedestrian with his car turned on the fact that the officer had stopped at a gym on the way home).
According to SCOTUS, the President enjoys arguably even broader immunity.
How long will it take until a non-diplomatic embassy employee kills a US citizen and argues immunity from prosecution on the basis of this EO? Maybe the prediction markets can weigh in…
Would the employee have immunity from U.S. prosecution if the killing took place in the foreign country's embassy in the U.S.? I thought that embassies are considered foreign territory for legal purposes (but I'm not a lawyer and I could be wrong).
What about children born in territories controlled by the Confederacy — ie in areas temporarily removed from U.S. sovereignty?
It also moves the Overton Window in that the original EO purported to reach children with no parent who was a citizen *or* a Legal Permanent Resident. This one dispenses with the latter exception. It is another move in the direction of trying to make citizenship a matter of blood and descent (jus sanguinis) instead of where you are born.
Agree that it's as much about messaging (particularly to a GOP base that hasn't had a lot of public wins recently) as the practical effects. It also drains the Courts capital on other cases, similar to how the 5th Circuit is the "most overruled" but those losses are designed to shape the future fights/allow less-objectionable precedent through.
Lawfare had a good analysis of the ODNI purges, which might not have happened, along these lines, and I consistently think it's a throughline for both Trump and Ron DeSantis: manufacturing fodder for Fox News is a key governing strategy. Being snarky to students, endless executive actions as a messaging tactic.
Is there anything to an argument rendering innocent babies born stateless, through no fault of their own, and having rights denied to them their whole life? Where is the humanity in that?
Thanks for your take on this latest Trump order. Good to know it has little substance. Glad you pointed out possible outcomes.
Concerning the birth tourism, which premises a denial of citizenship on the (supposed) fraud of the parents. Is this an unconstitutional bill of attainder? Punishing the child due to the crime of the parents is squarely inside bill of attainder; the only questions would seem to be whether denial of citizenship is a punishment, and whether the supposed fraud is criminal.
I have a question about the surrogacy issue, about which I know little (and I'm not a lawyer).
Suppose a woman who is a U.S. citizen acts as a surrogate for a foreign woman, traveling outside the U.S. to be implanted with a fertilized egg and then returning to the U.S. to give birth. Would Congress have the authority to regulate the act of bringing the "foreign" fertilized egg into the U.S., for example via Customs/importation regulations? I'm assuming that the fertilized egg is legally considered a mere material object, not a person. Likewise if the fertilized egg is shipped to the U.S. for implantation in the American woman.
In the alternative scenario where the foreign couple comes to the U.S. and creates a fertilized egg that's implanted in the American woman, would Congress (or State legislatures) have any authority to regulate that particular kind of medical procedure? I doubt it, but I have no legal expertise.
[Added later] An especially "Trumpian" approach would be to put very high tariffs on the importation of fertilized eggs created by foreign couples!
It doesn't help that this EO doesn't define parent. Neither does 8 USC 1433 (citizenship for children born outside the US). The Jan 2025 EO said biological parent (although in the surrogacy case, whose biology counts more, the ovum or womb?)
I think the term "biological parent" refers to the genetic parents, though I'm no expert. The surrogate mother is presumably considered a mere vessel.
By the way, if the fertilized egg was considered a person (which it isn't under U.S. law), a surrogate mother returning to the U.S. after having the egg implanted elsewhere might be charged (by the Trump administration) with human trafficking! The possibilities are endless.
Another philosophical point I find interesting is the relation of birthright citizenship to Anabaptists' views on baptism. Birthright citizenship traces back (in part) to the notion that the newborn child owes allegiance to the U.S. (and vice versa), as in the time of the kings of jolly old England. Somewhat analogously, in the Catholic Church baptism occurs shortly after birth. A newborn child cannot, of course, affirm any allegiance to a country or Church. Anabaptists thought that people should only be baptized as adults so that they can given informed consent (so to speak), and they were often punished or killed for their heretical views. In this respect, the European approach to birthright citizenship is roughly analogous to the Anabaptists' approach to baptism.
At the risk of sounding too cynical, I suspect that one of the reasons for Trump overtly challenging the Court's ruling on birthright citizenship is political: To keep the issue alive for the upcoming midterms and raise particularly inflammable and specious scenarios to use as a red flag to wave in front of his voters. Its a preposterous argument, but a simple one and win or lose Trump hopes it will make him look like the guardian at the gate who is standing alone to stem a tidal wave (or is the metaphor still an "invasion") of pregnant women coming into the Country to claim birthright citizenship for the children.
If this doesn't work, look for Trump to announce that he has uncovered documents from the deep state which prove that aliens have arrived and that only he can save, not merely the country, but the planet from ET.
I suggested something similar in my reply to Richard. Trump might be thinking "Maybe the Supreme Court will buy it this time, but if not, we can get good political advertising out of it."
Regarding pregnant women coming here to claim birthright citizenship for their children, I don't know how many did that when we had more porous borders, but many people may not realize that it was a real phenomenon, whatever one thinks about birthright citizenship. At just one hospital in San Diego, California, there were about six per day on average according to someone I know who worked there, and word was that the women waited on the Mexican side of the border until they were dilated enough to not be turned away by the hospital when they arrived. It was apparently a carefully planned operation, day after day, and all the doctors and nurses knew it. Again, one may support or oppose that, but it's worth knowing that it wasn't just fabricated propaganda.
Birth tourism is a real thing. But it's not just women coming over the southern border. It's just that no one is politicizing the ones with a different complexion coming via plane. I personally find birth tourism distasteful, but I can understand the desire to provide a better potential future for your children.
I've heard about that but I haven't read any details. I'm not sure if the women crossing the southern border to give birth here count as "birth tourism" since I don't know how many of them come to stay and how many return home after giving birth. My point was only that that's a real phenomenon (at least it was before the border got squeezed tight).
I also understand why women would do come here to give birth. It makes sense from their point of view. But I personally question whether the Founders had "in-and-out" births in mind when they wrote the Fourteenth Amendment. The current Supreme Court ruled on it, so the legal question is settled (for now).
On the policy level, I find the European approach more sensible, but I wouldn't support Trump's executive orders or anything else he does. The fact that he's the driving force often makes it hard to discuss the issue impartially.
I wanted to read the WSJ interview with Justice Alito but hit the pay wall. I did get the title though, which refers to Alito's notion of "practical originalism" -- by which I guess he means: "originalism is practically anything that supports my political and religious beliefs."
Quite apart from your constitutional analysis, I assume the EO has the same flaw as the original: while it can be assumed that we know the citizenship status of the mother, can we say the same of the father? Does the EO specify?
Any woman with a noncitizen partner can claim (hopefully with his agreement) that the child is the result of an affair with a citizen. Some even truthfully. Some women may have a shortlist of possible fathers. Sex workers, especially noncitizen sex slaves, may not even have that opportunity. Anonymous surrogacy or sperm donor?
Also, the original EO applied to any woman and a father who is at least a resident alien. That's gone too.
When I said "applied" I meant "exempted".
Further comment: if the noncitizen wife if married or domestic partnered to a citizen husband, will he be presumed to be the father? Or are we in mandatory paternity test territory?
Administering this order would be such a clusterf*.
The question about genetic testing of the presumed father is interesting, but it also applies to the existing statutes such as 8 USC 1433 granting U.S. citizenship to children born in foreign countries if at least one parent is a U.S. citizen (among other conditions). I don't know if the U.S. government tries to independently confirm fatherhood by a U.S. citizen in cases where that's a requirement.
https://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title8-section1433&num=0
Good point. But, and I don't know how significant this is, the January 2025 EO explicitly defines the parents as biological (both of them) while 8 USC 1433 doesn't define the parent at all; the Definitions section (8 USC 1101) is also silent. Perhaps is was meant as common sense, or up to the AG to decide.
FWIW, last week's EO doesn't define them either.
I think the people who write up Trump's EOs put out anything they think might possibly pass muster with the Supreme Court, without caring much about the details. And needless to say, their motivations aren't noble, but I do think there are a lot of interesting philosophical questions on this topic, if that's an appropriate way to phrase it.
The terrorist category is tricky given regime efforts to expand the material support statutes. If every Venezuelan or Yemeni in the country is considered a terrorist that would be a pretty broad sweep.