The Trump administration's second attempt to restrict birthright citizenship ditches the broad stroke that courts swatted down earlier this year and zeroes in on a category that several conservative legal scholars believe sits on firmer constitutional footing: children born to parents who are neither citizens nor lawful permanent residents.
The new executive orders, signed in late May 2025, draw a sharper line than the January version that triggered immediate injunctions from multiple federal judges. Where the first order sought to deny citizenship to virtually all children born on U.S. soil to non-citizen parents, the revised approach focuses on two groups: children born to mothers in the country illegally and children born to mothers on temporary visas, a practice commonly called "birth tourism."
The constitutional question turns on five words in the Fourteenth Amendment: "subject to the jurisdiction thereof." The amendment's Citizenship Clause grants citizenship to all persons "born or naturalized in the United States, and subject to the jurisdiction thereof." For more than a century, courts have read that phrase broadly. The Supreme Court's 1898 decision in United States v. Wong Kim Ark held that a child born in San Francisco to Chinese nationals who were legal residents was a citizen at birth.
Conservative legal minds backing the new orders argue that Wong Kim Ark does not settle the question for children of illegal border crossers or short-term visa holders. As Fox News reported, several scholars contend the 1898 ruling turned on the parents' lawful domicile, a fact pattern that does not apply to someone who entered without authorization or arrived on a tourist visa solely to give birth on American soil.
John Eastman, a constitutional law professor and senior fellow at the Claremont Institute, told Fox News that the new orders rest on "solid ground." Eastman argued that the Fourteenth Amendment was never intended to cover children of people with no lawful ties to the country. He pointed to the legislative history of the amendment, contending that its framers understood "subject to the jurisdiction thereof" to require complete allegiance, not mere physical presence.
The January 2025 executive order attempted a sweeping redefinition. It would have denied birthright citizenship to children born to any non-citizen mother, regardless of immigration status. Federal judges in multiple districts blocked the order within days, calling it an apparent violation of the Fourteenth Amendment as interpreted by Wong Kim Ark and subsequent case law. The Supreme Court ultimately declined to intervene on the administration's behalf at that stage, leaving the injunctions intact.
The administration's allies acknowledged the first order overreached. By targeting even children of lawful permanent residents, the January version collided head-on with Wong Kim Ark, which specifically addressed parents with legal domicile. Critics on the right warned at the time that the breadth of the order would guarantee defeat in court and potentially produce bad precedent.
The revised orders attempt to learn from that loss. By carving out lawful permanent residents and focusing on mothers who are either unlawfully present or on temporary non-immigrant visas, the administration believes it can argue that Wong Kim Ark simply does not apply.
Supporters of the new orders lean heavily on a textual reading of "subject to the jurisdiction thereof." Their argument runs as follows: a person who enters the country illegally has not submitted to U.S. jurisdiction in the full, allegiance-bearing sense the framers intended. A tourist visa holder, similarly, owes primary allegiance to a foreign sovereign and is present only temporarily.
Eastman and allied scholars cite Senator Lyman Trumbull, a co-author of the Fourteenth Amendment, who said during the 1866 debates that "subject to the jurisdiction" meant "not owing allegiance to anybody else." They also point to Senator Jacob Howard, who introduced the Citizenship Clause and stated it would "not, of course, include persons born in the United States who are foreigners."
Opponents counter that Wong Kim Ark already rejected this narrow reading. The 1898 majority held that "subject to the jurisdiction thereof" excluded only children of foreign diplomats, children of enemy forces in hostile occupation, and children born on foreign public vessels. Legal scholars on the left argue the opinion's logic extends to all persons born on U.S. soil, regardless of their parents' immigration status.
The birth tourism component of the new orders may face less political resistance. The practice, in which foreign nationals travel to the United States late in pregnancy specifically to deliver a child who will receive U.S. citizenship, has drawn criticism from both parties. Federal prosecutors under both the Obama and Trump administrations have brought fraud charges against birth tourism operators.
Rep. Harriet Hageman has introduced legislation targeting the birth tourism industry through congressional action, a parallel track that could reinforce the executive orders or provide a legislative backstop if courts strike them down.
Estimates of the scale of birth tourism vary widely. The Centers for Disease Control and Prevention does not track maternal visa status on birth certificates in most states, making precise numbers elusive. Investigators have not released comprehensive data on how many births each year involve mothers on tourist or other short-term visas.
Not all conservative legal thinkers share Eastman's optimism. Some who support restrictions on birthright citizenship as a policy matter have cautioned that the executive branch may lack the authority to reinterpret the Fourteenth Amendment unilaterally. They argue that a constitutional amendment or, at minimum, an act of Congress would be required.
Ilya Shapiro, a libertarian-leaning constitutional scholar, has previously argued that Wong Kim Ark is broader than the administration's allies acknowledge and that lower courts will likely read it to cover children of illegal immigrants as well. Shapiro's view is that the textual argument, while intellectually serious, faces an uphill battle given more than a century of practice and judicial interpretation.
The administration's allies respond that no Supreme Court case has ever squarely addressed whether children born to illegal immigrants are entitled to birthright citizenship. Wong Kim Ark involved legal residents. The 1982 decision in Plyler v. Doe, which required states to educate children of illegal immigrants, assumed those children were citizens but did not directly rule on the Citizenship Clause. Supporters see that gap as an opening.
Legal challenges to the new orders are expected within days of their implementation. Civil rights organizations and several state attorneys general have signaled they will seek injunctions, likely in the same federal courts that blocked the January order.
The administration appears to welcome a court fight this time. Senior officials have indicated they believe the narrower scope gives them a viable path to the Supreme Court, where they hope at least five justices will adopt the limited reading of "subject to the jurisdiction thereof." Justice Brett Kavanaugh's concurrence in the earlier birthright citizenship case offered language that some in the administration read as a roadmap for a future challenge built on narrower facts.
District courts will likely rule first, followed by circuit courts of appeals. A Supreme Court decision, if the case reaches that stage, would probably not come before the 2026 or 2027 term. In the meantime, the practical effect of the orders depends entirely on whether courts allow them to take effect during litigation.
The birthright citizenship orders fit within a wider enforcement agenda. The State Department has revoked more than 175,000 visas under the current administration, and immigration enforcement agencies have expanded operations in the interior of the country.
If the new orders survive judicial review, their immediate effect would be to deny automatic citizenship to newborns whose mothers fall into the targeted categories. Those children would instead receive the nationality of their parents' home country. Authorities have not publicly confirmed how the orders would interact with existing birth certificate procedures at the state level, where vital records are typically administered.
The new executive orders also raise questions about retroactivity. The text of the orders, as described by administration officials, applies prospectively to future births. Investigators and legal analysts will need to determine whether any provisions could affect children already born or citizenship applications already pending.
Strip away the procedural layers and the case comes down to a single question: did the framers of the Fourteenth Amendment intend to grant citizenship to every child physically born on American soil, or did they limit that guarantee to children whose parents owed allegiance to the United States? The answer will shape immigration law for generations.
The administration is betting that a Supreme Court willing to revisit long-settled assumptions, as the current Court has shown itself to be, will look past a century of practice and read the text the way Eastman and his allies do. Opponents are betting that Wong Kim Ark is too deeply embedded in constitutional law to dislodge through executive action alone.
One side will be proven right, and the losing side will have to live with a precedent far more consequential than any single executive order. That is what makes this round different from the last one. The administration is no longer swinging for a headline. It is building a case.
