The White House Just Made Itself the Only Judge of Who’s Born American

The Firing Line | Barking Justice Media
Daily Intelligence Briefing
August 12, 2026
By Mika Douglas and Robert Anderson

Six days after the Supreme Court struck down his first birthright citizenship order, Trump signed two more, this time letting State Department and Homeland Security officials decide who counts as a citizen before any judge ever reviews it.

A couple in New Hampshire is due to have their first child within weeks. Under an executive order the President signed six days ago, that newborn could be classified at birth as an undocumented noncitizen, ineligible for the basic health care and nutrition support every other baby born in that hospital receives automatically. The Supreme Court already ruled this kind of order unconstitutional. It did that in June, 6-3. That has not stopped the administration from trying again, this time routing the decision through two federal agencies instead of the courts.

On June 30, the Supreme Court struck down the President’s original order stripping birthright citizenship from children of undocumented and temporary-status parents. Five justices called it unconstitutional. A sixth, Kavanaugh, agreed on narrower grounds. Three dissented. In the same ruling, the Court named the only categories of U.S.-born children who have never automatically received citizenship: children of foreign ambassadors, children born on foreign public ships, children born to an occupying enemy force, and children of certain tribal members under treaty law. That list has stood for over a century. It is short, and it is closed.

On August 6, in the Oval Office, flanked by Deputy Chief of Staff Stephen Miller and Commerce Secretary Howard Lutnick, the President signed two new orders that add to that list without going back to the Court that just closed it. The first strips citizenship documentation from children born to anyone classified as an “alien enemy,” a foreign government employee, or a parent who “engaged in a commercial transaction” to obtain citizenship for the child. The second directs the Secretaries of State and Homeland Security to treat “birth tourism” visas as fraudulently obtained, and therefore void, whenever a mother’s true purpose in visiting was to give birth on American soil. By the administration’s own account, almost no one currently fits the “alien enemy” category, and only a few thousand people nationwide are registered foreign lobbyists. The categories are narrow. What they establish is not.

That New Hampshire couple is not hypothetical. They are named plaintiffs in a motion the ACLU filed in federal court on August 11, the same coalition that won the June ruling, asking a judge to declare that the Supreme Court’s decision already blocks this second attempt too. “President Trump may not like the fact that birthright citizenship is a constitutional right,” said Cody Wofsy, the ACLU’s lead attorney on the case. “That is really beside the point.”