{"id":159809,"date":"2026-08-07T15:22:31","date_gmt":"2026-08-07T23:22:31","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/08\/07\/trump-issues-new-birthright-citizenship-orders-in-direct-defiance-of-supreme-court\/"},"modified":"2026-08-07T15:22:31","modified_gmt":"2026-08-07T23:22:31","slug":"trump-issues-new-birthright-citizenship-orders-in-direct-defiance-of-supreme-court","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/08\/07\/trump-issues-new-birthright-citizenship-orders-in-direct-defiance-of-supreme-court\/","title":{"rendered":"Trump Issues New Birthright Citizenship Orders In Direct Defiance Of Supreme Court"},"content":{"rendered":"

After the Supreme Court ruled in Trump v. Barbara<\/a><\/em> that the Fourteenth Amendment\u2019s birthright citizenship clause means exactly what it says, and exactly what every court has agreed it says for over a century, Donald Trump threw a temper tantrum pledging that he would seek an immediate rehearing<\/a> to reverse the decision. He didn\u2019t have any basis for this, and even less of an argument for reversal, so the deadline for that motion came and went<\/a> with no action from the White House. <\/p>\n

Because, despite raging against the Supreme Court decision for a month, Donald Trump decided it\u2019s easier to just\u2026 pretend the Supreme Court decision ruled for him all along!<\/p>\n

From the first of two executive orders<\/a> Donald Trump signed yesterday:<\/p>\n

\n

On June 30, 2026, the Supreme Court decided in Trump v. Barbara<\/em> . . . that the Citizenship Clause of the Fourteenth Amendment to the United States Constitution extends the privilege of citizenship to children born to parents in the United States \u201cfor whom no extraterritorial fiction applie[s].\u201d<\/p>\n<\/blockquote>\n

The Supreme Court did not, in fact, decide that. The executive order cuts this quote from the following sentence in the majority opinion:<\/p>\n

\n

Any child who was born \u201cunder the protection of\u201d the United States \u2014 that is, any child for whom no extraterritorial fiction applied \u2014 was made a citizen, for he owed a natural \u201callegiance\u201d (and thus \u201cobedience\u201d) to the Nation.<\/p>\n<\/blockquote>\n

For you grammar buffs out there, that\u2019s a pretty significant antecedent shift. In the Supreme Court ruling, the qualifier attaches to the child. In the executive order, it attaches to the parents. <\/p>\n

The majority opinion dealt with this explicitly, explaining that the Citizenship Clause does not care about parental status. While \u201cmother,\u201d \u201cfather,\u201d \u201clawful,\u201d and \u201ctemporary\u201d are words that appear all over Executive Order 14160, the Court noted that they appear nowhere in the Fourteenth Amendment. In his latest executive order, Trump\u2019s answer is to cut up the sentence rejecting the parent-status test as though it stands for a parent-status test.<\/p>\n

This isn\u2019t the first time the administration misquoted the Supreme Court to manufacture the result they wanted<\/a>, but in the prior instance, it seemed as though the DOJ got lazy with AI. This is a deliberate collateral attack on a Supreme Court decision.<\/p>\n

Wong Kim Ark<\/em> recognized four categories of children who exist outside the jurisdiction of the United States even when born here: children of foreign sovereigns or their ministers, children born on foreign public ships, children of enemies during hostile occupation, and children of tribal members. Nothing about the majority opinion this year changed that closed set\u2026 and we know that because Brett Kavanaugh wrote separately just to complain about it. The four exceptions, he noted, have \u201cconsistently been read\u201d as closed, \u201cincluding by plaintiffs and the Court today.\u201d Justice Gropey thought this reading was wrong. He lost.<\/p>\n

The new executive order adds more exceptions to this closed list, purporting that the order \u201cidentifies, non-exhaustively\u2026 certain categories of children of aliens who do not fall within the rule of birthright citizenship.\u201d<\/p>\n

The executive branch has the authority to identify jack shit under the Barbara<\/em> decision.<\/p>\n

The new order identifies children born to ambassadors and consular staff, which everyone agrees on, and then plays hell with the Wong Kim Ark<\/em> exceptions, inventing an exception for a child whose parent is an \u201calien enemy\u201d \u2014 defined as a member of a designated Foreign Terrorist Organization or a Specially Designated Global Terrorist. That\u2019s far afield of a child born as part of an occupying army. Judge James Ho complained recently that the Supreme Court never dealt with Trump declaring immigrants an invasion<\/a>. This order goes even broader, alleviating the need to invent an \u201coccupation\u201d and skipping directly to stripping citizenship based solely on designating parents suspect with an essentially unreviewable administration declaration. It\u2019s all fun and games until Trump declares Democrats a terrorist organization.<\/p>\n

The order also excludes any child whose parents \u201cengage in a commercial transaction to ensure that the person\u2019s mother is present in the United States . . . to give birth.\u201d Subsection (ii) explicitly sweeps in surrogacy, which is both legal and how many American families exist.<\/p>\n

The second order, Ending Birth Tourism<\/a>, masquerades as reasonable clarification of visa policy until you remember seeking a visa to come here and give birth is already visa fraud<\/a>, and has already been prosecuted by previous administrations. An order simply restating existing law isn\u2019t doing legal work, it\u2019s doing framing work. It\u2019s a publicity stunt to hype \u201cbirth tourism\u201d to gullible bigots.<\/p>\n

\u201cBirth tourism\u201d doesn\u2019t even work the way the conservatives like to pretend. It\u2019s an extension of the \u201canchor baby\u201d myth. A child born here to noncitizen parents is a citizen, but the parents get nothing<\/em>. If there\u2019s no guardian to leave the citizen baby with, that kid gets removed right alongside the parents. The kid can comes back on their own at 18. They can try to bring in their parents then, but that\u2019s a slow anchor. When Trump describes it as \u201cthey\u2019re buying their way in,\u201d<\/a> he\u2019s playing on a right-wing fever dream that kids born in America give a free pass to whole families to walk into the country immediately.<\/p>\n

And it\u2019s not going to be deployed against hypothetical parents coming to America to give birth, it\u2019s going to be the justification to treat an airline ticket as enough of a commercial transaction to toss legal permanent residents and asylum seekers and any other immigrant trying to come here \u201cthe right way,\u201d like Republicans always say they support, but really don\u2019t. <\/p>\n

A few months back I was on Dan Abrams\u2019s show discussing whether we were in a constitutional crisis yet. His position was that we weren\u2019t because the executive wasn\u2019t deliberately defying court orders. I argued that constitutional crises don\u2019t arrive like that. It would come through \u201caccidentally\u201d violating orders, and malicious prosecutions, and attacks on judges. Tactics that allow the administration to plead plausible deniability if called out, but that they would \u2014 on balance \u2014 get away with more often than not by virtue of swamping the system <\/p>\n

Donald Trump didn\u2019t say \u2014 or Truth Social as the case may be \u2014 \u201cJohn Roberts has made his decision; now let him enforce it!\u201d But he doesn\u2019t have to. He can just act like he won until someone stops him in a year or two. Or never.<\/p>\n

Earlier<\/strong>: Supreme Court Narrowly Passes Reading Comprehension Section<\/a>
Justice Gorsuch\u2019s Birthright Citizenship Dissent\u2026 Will Not Make Donald Trump Happy<\/a>
Trump Calls Supreme Court \u2018Absolutely Insane\u2019 And Then Asks For Birthright Citizenship Do-Over<\/a>
Trump Fails To File Promised Birthright Citizenship Rehearing Before Deadline<\/a>
Donald Trump Went To Supreme Court To Watch Live As Birthright Citizenship Policy Got Thoroughly Smoked<\/a>
Judge James Ho Shakes His Moneymaker At Christian Legal Cabaret<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n

The post Trump Issues New Birthright Citizenship Orders In Direct Defiance Of Supreme Court<\/a> appeared first on Above the Law<\/a>.<\/p>\n

After the Supreme Court ruled in Trump v. Barbara<\/a><\/em> that the Fourteenth Amendment\u2019s birthright citizenship clause means exactly what it says, and exactly what every court has agreed it says for over a century, Donald Trump threw a temper tantrum pledging that he would seek an immediate rehearing<\/a> to reverse the decision. He didn\u2019t have any basis for this, and even less of an argument for reversal, so the deadline for that motion came and went<\/a> with no action from the White House. <\/p>\n

Because, despite raging against the Supreme Court decision for a month, Donald Trump decided it\u2019s easier to just\u2026 pretend the Supreme Court decision ruled for him all along!<\/p>\n

From the first of two executive orders<\/a> Donald Trump signed yesterday:<\/p>\n

\n

On June 30, 2026, the Supreme Court decided in Trump v. Barbara<\/em> . . . that the Citizenship Clause of the Fourteenth Amendment to the United States Constitution extends the privilege of citizenship to children born to parents in the United States \u201cfor whom no extraterritorial fiction applie[s].\u201d<\/p>\n<\/blockquote>\n

The Supreme Court did not, in fact, decide that. The executive order cuts this quote from the following sentence in the majority opinion:<\/p>\n

\n

Any child who was born \u201cunder the protection of\u201d the United States \u2014 that is, any child for whom no extraterritorial fiction applied \u2014 was made a citizen, for he owed a natural \u201callegiance\u201d (and thus \u201cobedience\u201d) to the Nation.<\/p>\n<\/blockquote>\n

For you grammar buffs out there, that\u2019s a pretty significant antecedent shift. In the Supreme Court ruling, the qualifier attaches to the child. In the executive order, it attaches to the parents. <\/p>\n

The majority opinion dealt with this explicitly, explaining that the Citizenship Clause does not care about parental status. While \u201cmother,\u201d \u201cfather,\u201d \u201clawful,\u201d and \u201ctemporary\u201d are words that appear all over Executive Order 14160, the Court noted that they appear nowhere in the Fourteenth Amendment. In his latest executive order, Trump\u2019s answer is to cut up the sentence rejecting the parent-status test as though it stands for a parent-status test.<\/p>\n

This isn\u2019t the first time the administration misquoted the Supreme Court to manufacture the result they wanted<\/a>, but in the prior instance, it seemed as though the DOJ got lazy with AI. This is a deliberate collateral attack on a Supreme Court decision.<\/p>\n

Wong Kim Ark<\/em> recognized four categories of children who exist outside the jurisdiction of the United States even when born here: children of foreign sovereigns or their ministers, children born on foreign public ships, children of enemies during hostile occupation, and children of tribal members. Nothing about the majority opinion this year changed that closed set\u2026 and we know that because Brett Kavanaugh wrote separately just to complain about it. The four exceptions, he noted, have \u201cconsistently been read\u201d as closed, \u201cincluding by plaintiffs and the Court today.\u201d Justice Gropey thought this reading was wrong. He lost.<\/p>\n

The new executive order adds more exceptions to this closed list, purporting that the order \u201cidentifies, non-exhaustively\u2026 certain categories of children of aliens who do not fall within the rule of birthright citizenship.\u201d<\/p>\n

The executive branch has the authority to identify jack shit under the Barbara<\/em> decision.<\/p>\n

The new order identifies children born to ambassadors and consular staff, which everyone agrees on, and then plays hell with the Wong Kim Ark<\/em> exceptions, inventing an exception for a child whose parent is an \u201calien enemy\u201d \u2014 defined as a member of a designated Foreign Terrorist Organization or a Specially Designated Global Terrorist. That\u2019s far afield of a child born as part of an occupying army. Judge James Ho complained recently that the Supreme Court never dealt with Trump declaring immigrants an invasion<\/a>. This order goes even broader, alleviating the need to invent an \u201coccupation\u201d and skipping directly to stripping citizenship based solely on designating parents suspect with an essentially unreviewable administration declaration. It\u2019s all fun and games until Trump declares Democrats a terrorist organization.<\/p>\n

The order also excludes any child whose parents \u201cengage in a commercial transaction to ensure that the person\u2019s mother is present in the United States . . . to give birth.\u201d Subsection (ii) explicitly sweeps in surrogacy, which is both legal and how many American families exist.<\/p>\n

The second order, Ending Birth Tourism<\/a>, masquerades as reasonable clarification of visa policy until you remember seeking a visa to come here and give birth is already visa fraud<\/a>, and has already been prosecuted by previous administrations. An order simply restating existing law isn\u2019t doing legal work, it\u2019s doing framing work. It\u2019s a publicity stunt to hype \u201cbirth tourism\u201d to gullible bigots.<\/p>\n

\u201cBirth tourism\u201d doesn\u2019t even work the way the conservatives like to pretend. It\u2019s an extension of the \u201canchor baby\u201d myth. A child born here to noncitizen parents is a citizen, but the parents get nothing<\/em>. If there\u2019s no guardian to leave the citizen baby with, that kid gets removed right alongside the parents. The kid can comes back on their own at 18. They can try to bring in their parents then, but that\u2019s a slow anchor. When Trump describes it as \u201cthey\u2019re buying their way in,\u201d<\/a> he\u2019s playing on a right-wing fever dream that kids born in America give a free pass to whole families to walk into the country immediately.<\/p>\n

And it\u2019s not going to be deployed against hypothetical parents coming to America to give birth, it\u2019s going to be the justification to treat an airline ticket as enough of a commercial transaction to toss legal permanent residents and asylum seekers and any other immigrant trying to come here \u201cthe right way,\u201d like Republicans always say they support, but really don\u2019t. <\/p>\n

A few months back I was on Dan Abrams\u2019s show discussing whether we were in a constitutional crisis yet. His position was that we weren\u2019t because the executive wasn\u2019t deliberately defying court orders. I argued that constitutional crises don\u2019t arrive like that. It would come through \u201caccidentally\u201d violating orders, and malicious prosecutions, and attacks on judges. Tactics that allow the administration to plead plausible deniability if called out, but that they would \u2014 on balance \u2014 get away with more often than not by virtue of swamping the system <\/p>\n

Donald Trump didn\u2019t say \u2014 or Truth Social as the case may be \u2014 \u201cJohn Roberts has made his decision; now let him enforce it!\u201d But he doesn\u2019t have to. He can just act like he won until someone stops him in a year or two. Or never.<\/p>\n

Earlier<\/strong>: Supreme Court Narrowly Passes Reading Comprehension Section<\/a>
Justice Gorsuch\u2019s Birthright Citizenship Dissent\u2026 Will Not Make Donald Trump Happy<\/a>
Trump Calls Supreme Court \u2018Absolutely Insane\u2019 And Then Asks For Birthright Citizenship Do-Over<\/a>
Trump Fails To File Promised Birthright Citizenship Rehearing Before Deadline<\/a>
Donald Trump Went To Supreme Court To Watch Live As Birthright Citizenship Policy Got Thoroughly Smoked<\/a>
Judge James Ho Shakes His Moneymaker At Christian Legal Cabaret<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n

The post Trump Issues New Birthright Citizenship Orders In Direct Defiance Of Supreme Court<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

After the Supreme Court ruled in Trump v. Barbara that the Fourteenth Amendment\u2019s birthright citizenship clause means exactly what it says, and exactly what every court has agreed it says for over a century, Donald Trump threw a temper tantrum pledging that he would seek an immediate rehearing to reverse the decision. He didn\u2019t have […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-159809","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/159809","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=159809"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/159809\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=159809"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=159809"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=159809"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}