Two birthright citizenship executive orders came down late Thursday. In such circumstances, producers, reporters, and journalists face the challenge — and privilege — of distilling and explaining them to an audience that has not read either one and should not have to.
My portion of that process starts with a set of notes for the producers: what the orders actually say, which questions I think are important to ask, and the honest answer to each one. It’s one input among many. The producers are working several stories at once, deciding what leads, what gets cut, what deserves emphasis, and the anchor has to take all of it and make it land live, often without a script, while a control room talks in her ear. Those are the hard parts, and they definitely aren’t mine.
I have written several times, on this site and others, about birthright citizenship. But the issue is also too important not to flag the [supposedly but not really] new development, so I decided that you — which is to say both of — my dear readers might appreciate the (BTS!) verbatim version of my notes for the producers. Then, in case of comparison interest, I’ve included the resulting “finished product” — one of yesterday’s ABC News discussions on the topic.
Two orders. One narrows who the government will recognize as a citizen at birth. One targets travel here to give birth.
Neither changes anyone’s legal status. The first controls paperwork. The second controls visas.
Yes. Children born here to parents who are here illegally, or here temporarily, are citizens. The order claims four groups were never covered by that ruling.
Children of “alien enemies,” meaning people on federal terrorism lists.
Children of foreign government employees.
Children whose parents paid to be here for the birth, including through a surrogate.
Children born in a U.S. territory, or in U.S. waters, where no law grants citizenship.
The order says the list isn’t final.
No. The old exception is for an enemy army occupying our soil, where U.S. law can’t reach.
Terrorism listings assume the opposite. We arrest these people here and freeze their money. A listing is also a government decision, not a court finding that a particular parent belongs to anything.
That rule exists because diplomats can’t be arrested, taxed, or sued here. Immunity is the whole reason.
Look at how the order handles that. It requires immunity for one group and skips it for the others. An embassy’s local hire has no immunity at all.
The Fourteenth Amendment puts citizenship at birth in the Constitution, which is the one place a President can’t reach.
The Supreme Court answered this question five weeks ago. Children born here to parents who are here illegally, or here temporarily, are citizens.
The historical exceptions were never about whether we approve of the parents. They were about whether American law could reach them at all. A foreign ambassador can’t be arrested here. An occupying enemy army isn’t governed by our courts.
Every group in this order fails that test. A parent on a tourist visa, an embassy’s local hire, a man on a terrorism list: all of them can be arrested, taxed, sued, and prosecuted here. That is what being subject to U.S. jurisdiction means.
The terrorism category refutes itself. The government’s entire justification for those designations is that it can prosecute these people in American courts and freeze their assets under American law.
On the fraud argument: yes, the government can take citizenship back from someone who lied to get naturalized. That takes a federal judge, a high standard of proof, and it reaches the person who lied. A newborn hasn’t lied to anyone, and citizenship at birth isn’t a benefit the government hands out in the first place.
The order also runs into statutes it can’t touch. Congress granted citizenship in Puerto Rico by law, and the order concedes it can’t change that. At the same time, it instructs federal agencies to stop accepting state birth certificates, which is the document the entire system has relied on to prove where a person was born.
So the honest answer is that this is an attempt to do by executive order what the Constitution assigns to constitutional amendment and what statutes assign to Congress.
The order can’t actually take a child’s citizenship. What it can do is refuse the paperwork that proves it, which leaves children who are citizens with no way to demonstrate that they are. The cruelty is, at least in part, the point.
Fraud can strip citizenship from someone who was naturalized, but only from the person who lied, and only in court. Citizenship at birth comes from the Constitution. The baby lied to no one.
No passport, no Social Security number, and agencies are told to reject state birth certificates. Agency rules are due in 30 days. Families can go to federal court for an order declaring the child a citizen.
Lawsuits. The plaintiffs who won in June are still organized, and the order’s own thirty-day deadline will produce concrete agency actions to challenge.
At the consulate. The best tool is one the government already has, and it sits at the consulate. A 2020 rule bars a visitor visa where the primary purpose of travel is giving birth here, and the applicant bears the burden of overcoming it. Consular denials are effectively unreviewable, so discretion is widest and legal exposure narrowest right there. Tighter screening would do more than either order signed yesterday, and no one could sue. Public charge reaches the same applicants: a mother who cannot show she can pay for the delivery may be refused, which targets the cost rather than the symbolism.
Charge the businesses. This is more effective and vastly more defensible than attaching consequences to newborns. The convictions in California and New York rested on conspiracy to defraud the United States, visa fraud, false statements, and money laundering, and they charged the operators, not the mothers. Truthful advertising of a lawful service is protected. Fraudulent advertising is not.
Count it, fairly. The third is unglamorous and overdue. No federal agency counts this. Estimates run from a few thousand to seventy thousand, which is why everyone can cite a number that flatters their version of the argument. Even Trump’s own Solicitor General John Sauer, admitted at oral argument that the government actually has no idea what the real number is. Better residence reporting at NCHS, or a GAO study, would cost little and would settle whether the practice is marginal or substantial. An administration confident in its position has every reason to want that number.
TLDR as to the “Birth Tourism” rhetoric: Choosing an order that will be enjoined over tools that would actually work tells you something about the real purpose of the order.
— James
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