On Aug. 6, President Donald Trump signed two executive orders concerning birthright citizenship. One extends an enforcement policy that largely existed already. The other attempts something far more consequential: making a child’s citizenship turn on a parent’s identity or conduct.
The first order, “Ending Birth Tourism,” is less novel than its title. Since January 2020, State Department regulations have prohibited issuing a visitor visa when an applicant’s primary purpose is giving birth in the United States to obtain citizenship for the child. The Foreign Affairs Manual already instructs consular officers to apply a rebuttable presumption when they reasonably believe an applicant will give birth during her stay.
The 2020 regulation principally governed B visitor visas — the category that includes the B-2 tourist visa — and expressly left Department of Homeland Security admissibility standards unchanged. The new order moves the policy beyond the visa counter. It brings DHS into the initiative, delegates authority under Section 215(a) of the Immigration and Nationality Act, and directs agencies to revise their rules and guidance. It contemplates visa revocation, denial of entry, removal, permanent exclusion, and action against anyone facilitating birth tourism “in any manner.” Its real significance is not a new ban but government-wide coordination and escalation.
The second order, “Continuing to Protect the Meaning and Value of American Citizenship,” crosses a different line. It directs federal agencies not to issue or accept documents recognizing citizenship when neither parent is a U.S. citizen and specified circumstances apply. Those include cases involving an “alien enemy,” a member of a designated terrorist organization, certain employees of foreign governments or international organizations, or a commercial transaction intended to obtain citizenship for the child. The order expressly reaches payments to arrange a U.S. birth and commercial surrogacy involving a U.S.-based surrogate.
The timing helps explain the pairing. On June 30, the Supreme Court held in Trump v. Barbara that children born in the U.S. to parents who are unlawfully or temporarily present are citizens under the 14th Amendment. Within hours, the Justice Department directed prosecutors to prioritize birth-tourism investigations. Five weeks later came the two orders: one controlling entry within the Court’s boundary, the other trying to redraw it.
The familiar exception for children of accredited diplomats rests on diplomatic immunity, which places their parents outside ordinary U.S. jurisdiction. The new order goes further, extending that rationale to additional foreign-government and international-organization employees — and proposing to deny citizenship because a parent purchased services, committed fraud, or used commercial surrogacy.
The constitutional difficulty is straightforward. The Citizenship Clause asks whether a person was born in the U.S. and “subject to the jurisdiction thereof.” It does not condition citizenship on a parent’s virtue or financing arrangements. The government may punish visa fraud and prosecute businesses that knowingly facilitate it. Turning parental misconduct into a child’s constitutional disqualification is another matter — especially after Barbara reaffirmed that unlawful or temporary parental presence generally does not place an American-born child outside U.S. jurisdiction.
Why issue two orders? Because they separate the administration’s stronger legal strategy from its weaker one. If courts block the citizenship order, the birth-tourism crackdown can continue under established immigration authority. Trump can claim an enforcement victory even if his renewed attempt to narrow citizenship fails.
That is the real architecture of the Aug. 6 announcement. The first order gives an old visa policy more agencies, tools and political force. The second invites another constitutional fight. Signing them together lets Trump pursue the radical claim while protecting the more durable result.
Richard T. Herman is an immigration attorney of more than 30 years, founder of Herman Legal Group, and co-author of Immigrant, Inc: Why Immigrant Entrepreneurs Are Driving the New Economy.
