The American Civil Liberties Union has reviewed Donald Trump's latest attempt to strangle birthright citizenship with an executive order, and their verdict is roughly what you'd expect from reading the Constitution: 'Nice try, but no.'
Just five weeks after the US supreme court swatted down his previous order on the matter, Trump signed two new executive orders on Thursday that aim to deny citizenship to children born in the US to non-citizens. The ACLU, in a statement that can only be described as 'we've seen this movie before,' predicted the orders will meet the same fate as their predecessor.
'The Supreme Court already decided this issue: Birthright citizenship is guaranteed by the Constitution. No additional executive order can change the meaning of the Constitution,' said Cody Wofsy, deputy director of the ACLU's Immigrants' Rights Project. 'Any executive order that tries to rewrite birthright citizenship will meet the same fate as the last one.'
This quixotic quest is not new. Back in November 2015, at a Republican presidential primary debate in Orlando, Florida, Trump promised to end the scourge of 'anchor babies,' a term that is as charming as it sounds. 'You can't come into the country- you're illegal, you come down, you sit down, you have your baby, and we take care of the baby for the next 85 years!' he declared. 'Everybody says, 'Well, you need a constitutional amendment; it'll take 15 years; it'll never happen'. You don't, you don't. You need a simple act of Congress. You might not even need that.'
Three years later, in a televised interview with Jonathan Swan just before the 2018 midterms, Trump insisted he could do it with an executive order alone. 'It was always told to me that you needed a constitutional amendment. Guess what? You don't,' he said. 'You can definitely do it with an act of Congress,' he added, incorrectly, 'but now they're saying I can do it just with an executive order.'
That minority view was championed by John Eastman, a then-obscure lawyer who had argued for decades that the 14th Amendment's guarantee of citizenship to 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof' should exclude children of non-citizens. Eastman later gained infamy for claiming in a 2020 Newsweek op-ed that Kamala Harris was ineligible for the vice-presidency because her parents were not citizens at her birth in Oakland in 1964. He also devised the fake electors scheme after the 2020 election and was disbarred by the California supreme court in April for 'clear and convincing evidence that he advanced false claims about the 2020 presidential election.'
Trump's obsession with birthright citizenship has always had a political edge. His rise to prominence was fueled by the false claim that Barack Obama, born in Honolulu to an American mother and Kenyan father, might have been born outside the US. He later refused to confirm that Harris, the daughter of immigrants from India and Jamaica, was a 'natural born Citizen' eligible for the vice-presidency, calling Eastman's question 'very serious.'
On Thursday, Trump signed two orders: 'Continuing to Protect the Meaning and Value of American Citizenship' and 'Ending Birth Tourism.' The first seeks to deny citizenship to children of certain non-citizens, including foreign government employees, international organization staff, and anyone 'engaged in a commercial transaction to purchase or access birthright citizenship.' The second bars entry to foreigners allegedly traveling to the US 'for the purpose of giving birth on American soil,' without specifying how that determination is made. (Had this policy existed in 2001, it might have prevented Folarin Balogun, born that year to a mother visiting from London, from becoming a US citizen and playing for the US in this summer's World Cup.)
In the Oval Office, Trump offered a history lesson that would make any high school teacher weep. He called the supreme court's decision 'a very, very unfortunate decision' and claimed the 14th amendment 'was meant for the babies of slaves. It was right after - one week or two weeks after - the Civil war ended.' In reality, the Civil War ended in April 1865, and the amendment was passed in June 1866 and ratified in July 1868. The supreme court, in 1898, ruled 6-2 that Wong Kim Ark, born in San Francisco to Chinese parents, was a citizen.
Stephen Miller, the president's adviser, doubled down on Trump's revisionism, insisting the amendment 'was passed exclusively in the aftermath of the Civil War to ensure that the children of slaves would be citizens. It had no other meaning and purpose outside of that.' Trump also claimed the US is 'just about the only country period' with birthright citizenship. That's false: 32 other countries, mostly in the western hemisphere, have similar laws, and about 50 more have limited versions, according to the Pew Research Center.
Trump also claimed 'hundreds of thousands' of people practice birth tourism. The Migration Policy Institute estimates the number at 22,000 to 26,000 babies annually, with government data showing just 9,600 births to mothers with foreign addresses in 2024.
For context, Trump's own father, Fred Trump, was born a US citizen in 1905 to a non-citizen mother who arrived from Germany six months pregnant. The president's Scottish-born mother later gave birth to her first two children in the US. But who's counting?
Meanwhile, Trump refused to confirm a Washington Post report that he told donors to help JD Vance win the 2028 election. 'I think he's great, but we're way too early to even be thinking about that,' he said. Because nothing says 'looking forward' like relitigating the 14th amendment.