Despite a disastrously anti-American Supreme Court ruling on birthplace citizenship in Trump v. Barbara, President Trump proves determined to keep advancing his position on American citizenship despite opposition from the court. While even stronger measures of resistance would be justified, it is clear President Trump’s administration is doing its best to creatively prevent birthplace citizenship for foreign nationals while technically abiding within the confines of the Supreme Court’s decision.
Many options remain available for President Trump to curtail birthplace citizenship, which include exercising departmentalism, clearly defining the exceptions to the general rule of birthplace citizenship supported by the court, tightly controlling the issuance of visas to foreign visitors, shutting down the birth tourism industry, pressuring Congress to amend federal statutes, and generally advancing remigration as much as possible.
New Executive Orders
In Wong Kim Ark v. U.S. (1898) and most recently with Trump v. Barbara (2026), the Supreme Court had held that birthplace citizenship is not recognized for children of foreign diplomats residing in America, nor children of “alien enemies in hostile occupation.” Accordingly, President Trump announced two new executive orders this week to counter what the court has wrought.
In his order “Continuing To Protect The Meaning and Value of American Citizenship,” President Trump clarified which categories of foreign nationals are to be denied birthplace citizenship consistent with the court’s ruling in Trump v. Barbara. The president ordered that birthplace citizenship not be recognized for children whose parents are alien enemies, including members of designated foreign terrorist organizations, which now includes multiple Latin American cartels. Nor is birthplace citizenship to be recognized for children of diplomatic personnel from foreign countries (defined clearly in the executive order). Lastly, birthplace citizenship is denied for those whose parents engaged in birth tourism.
In the other order, “Ending Birth Tourism,” President Trump explained how birth tourism is a form of immigration fraud because it involves dishonestly obtaining a temporary, nonimmigrant visa while actually aiming to drop an anchor baby and thereby “establish a permanent foothold in the United States by securing the advantage of citizenship for their children and then potentially for themselves.”
By its nature, birth tourism aims at acquiring permanent benefits which would normally have to be obtained through the path of an immigrant visa and eventually naturalization. There is no statute explicitly banning birth tourism, but the president is correct that birth tourism is already de facto illegal because it involves lying about the reason for entering the U.S. and likely involves committing other accompanying crimes, as the DOJ recently noted.
The president’s order instructs the Departments of State and Homeland Security to scrutinize visa applicants, prevent entry for foreign nationals who are engaged in birth tourism, and revoke visas from those who have engaged in such activity. Also, the DOJ has recently announced its intention of investigating and prosecuting those operating and profiting from illegal birth tourism schemes.
Departmentalism
In considering how to resist bad Supreme Court doctrines, it should be noted that former American presidents, relying on the tradition of departmentalism, were not so deferential to the Supreme Court’s interpretation on matters of constitutional interpretation. Famously, President Andrew Jackson rejected the Supreme Court’s interpretation of the constitutionality of a national bank (McCulloch v. Maryland, 1819), vetoing the attempted recharter of the bank in 1832. Similarly, President Lincoln rejected the Supreme Court’s interpretation about black citizenship in Dred Scott v. Sandford (1857), and as president, his administration issued passports to free black Americans.
These are just a few examples. In line with this departmentalist logic, the strongest thing President Trump could do would be to publicly declare his repudiation of the court’s interpretation in Trump v. Barbara and instead announce his administration intends to only acknowledge citizenship in accordance with the outlines of his original executive order.
Admittedly, this would provoke outrage, not least from the judiciary. However, given that our judiciary repeatedly commits unconstitutional outrages of its own, and given that the anti-American, pro-criminal, open-borders left poses an existential threat to the survival of our American nation, I am not sure why the right should restrain itself from taking extraordinary steps to fight back.
Trump’s Strategy At Present
If such open resistance in the style of Jackson or Lincoln could be considered “hardcore” departmentalism, then Trump seems to be taking a more moderate, subtle form of departmentalism which still ultimately aims at indirectly resisting the court’s bad interpretation. The Trump administration is already aggressively pursuing a holistic remigration strategy by deporting illegal immigrants at record levels, terminating Temporary Protected Status, increasing denaturalizations, and slashing legal immigration through regulations.
Given the corruption of our regime, there are many obstacles to achieving all of these — especially the fact that we are not receiving much help from Congress — but the Trump administration has named them as its priorities and is doing what it can to work toward these goals.
It’s also quite possible a future Supreme Court could overturn the decision and interpretation in Trump v. Barbara. Republicans should also push for Congress to interpret the birthplace citizenship question by amending federal statutes, as Justice Kavanaugh proposed in his opinion concurring only in the judgment. Specifically, Kavanaugh suggested Congress amend 8 U.S.C. §1401(a) to include language explicitly designating illegal immigrants and temporary visitors as exceptions to the general rule of birthplace citizenship. Ultimately, a constitutional amendment should be passed, though that is hardly feasible in the near future.
In the interim, the abuse of birthplace citizenship becomes far less ubiquitous when the borders are secured, fewer visas are being issued to foreign nationals and with far greater scrutiny, and the categories of birth tourists and alien enemies are explicitly defined and excluded as in the president’s most recent orders. Theoretically, the president’s administration could require all female applicants for visas to demonstrate that they are not pregnant when seeking admission into the U.S. Granted, it is impossible to guarantee they don’t become pregnant while residing in the U.S. as temporary workers or students, which is a strong incentive to find regulatory and eventually legislative means to curtail or reform those immigration programs.
Given Roberts’ egregiously bad opinion in Trump v. Barbara, the Supreme Court is not making this easy for President Trump. Lower courts will inevitably seek to block whatever actions he takes, and even the Supreme Court and appellate courts will be scrupulous to make sure Trump’s orders and actions align with the Supreme Court’s ruling.
Consequently, barring an all-out presidential assault on the Supreme Court (which would not be unwarranted), it will take creative strategies of attack to restrict the avenues for abuse and to restrict legal immigration generally. However, even though the Supreme Court has endorsed a dangerously liberal position in its ruling, Trump can, with his current control of the federal executive agencies, creatively achieve essentially the same outcome he wants — i.e., a massive drop in “anchor babies” being born to noncitizens. Of course, this could all be undone in a day if a future Democratic president comes into office, which is why we must work urgently to prevent that from ever happening.
The first round of this fight may have gone unfavorably at the Supreme Court, but the war to restore the meaning and value of American citizenship is far from over. President Trump shows how to keep fighting.
