Conservative legal experts say President Donald Trumps latest attempts to narrow birthright citizenship and crack down on birth tourism may have stronger legal footing than his first effort.
After the Supreme Court ruled 6-3 in June that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the 14th Amendment, Trump issued two new executive orders taking narrower approaches to citizenship and birth tourism.
The first, signed Aug. 6, directs federal agencies to withhold documents recognizing citizenship from certain children born when neither parent is a U.S. citizen, including some whose parents are members of designated foreign terrorist organizations, foreign-government employees or participants in transactions or fraud intended to obtain birthright citizenship.
Experts from the Manhattan Institute, America First Legal and the America First Policy Institute, all right-of-center organizations, argued that Trumps new order is narrower than his first and is built around longstanding exceptions to birthright citizenship that they believe could apply here.
“The Supreme Court has long recognized that there are exceptions to the 14th Amendment’s birthright citizenship clause for the aliens who are considered children of invading armies or the children of ambassadors,” America First Policy Institute senior fellow Chad Mizelle, who previously served as the Justice Departments chief of staff, told Fox News Digital. “So in a situation where you have a terrorist here contrary to the laws of the United States ⦠who is looking to do harm ⦠That has long been recognized by the Supreme Court, and basically going back to the history of our country, as recognized exceptions to any sort of claim of birthright citizenship.”
United States v. Wong Kim Ark, decided by the Supreme Court in 1898, recognized exceptions to birthright citizenship for children of diplomats and children of alien enemies born during a hostile occupation. Trumps order argues that members of foreign terrorist organizations can fall within that enemy exception.
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“The Supreme Court ruled that you can’t restrict birthright citizenship to kids of people in the country temporarily or illegally,” Manhattan Institute director of constitutional studies Ilya Shapiro told Fox News Digital. “But what the new executive order does is it goes to one of the classic exceptions to birthrights citizenship, two of the classic exceptions, those who owe an allegiance to a foreign government, meaning employed by a foreign governing diplomats otherwise, and those who are invaders of foreign armies and terrorists, members of foreign organizations hostile to America, certainly qualify in that category.”
David Bier, the director of immigration studies at the libertarian Cato Institute, however, argued that the presidents attempt to redefine what constitutes an alien enemy without going through Congress puts the administration on legally shaky ground.
“Congress ultimately establishes what it means to be subject to U.S. jurisdiction,” Bier told Fox News Digital. “There’s this very limited excepti
