Donald Trump lost this fight once already. The Supreme Court told him in June that he cannot rewrite the Fourteenth Amendment with a Sharpie. So he came back with two more executive orders, narrower in framing, broader in their capacity for harm, and designed to do what this administration always does when the law says no: find a new way to punish the people who were never the problem.
The first order instructs federal agencies to withhold citizenship documents from “certain categories of children” born on U.S. soil to noncitizen parents. The categories include babies with at least one parent who engaged in a “commercial transaction” to ensure the mother was present in the United States to give birth. The order does not define “commercial transaction.” A plane ticket is a commercial transaction. A bus fare is a commercial transaction. Payment for reproductive healthcare, including gestational surrogacy, is a commercial transaction. The vagueness is not an oversight. It is the mechanism.
Shealeah Craighead (Public domain) via Wikimedia CommonsThe second order declares it U.S. policy to prevent “birth tourism,” defined as noncitizens entering on nonimmigrant visas “for the purpose of giving birth on American soil.” It hands the State Department and DHS authority to deny entry to or remove anyone they suspect of fitting that description. The keyword is “suspect.” There is no definition of what constitutes suspicion. There is no hearing. There is a pregnant person at a border crossing and an officer with discretion.
Trump stood at a podium Thursday and said “hundreds of thousands” of births qualify as birth tourism. CDC data from 2024 counted roughly 9,600 births to foreign mothers with addresses outside the country. The Center for Immigration Studies, which advocates for lower immigration, puts the upper estimate at 26,000. Less than 0.3 percent of the 3.5 million babies born in the United States each year are born to temporary visa holders. The president’s number is invented. The policy built on it is real.
H2rty (CC BY-SA 4.0) via Wikimedia CommonsJustice Ketanji Brown Jackson saw where this was heading back in April, during oral argument in Trump v. Barbara. When the administration’s lawyer argued that a child’s citizenship should turn on a parent’s intent to remain in the country, she asked: “So are we bringing pregnant women in for depositions?” The administration’s answer, in these orders, is effectively yes, and then some. The orders empower agencies to profile, question, surveil, detain, and deport people they assume are capable of giving birth. This is not immigration enforcement. This is pregnancy policing.
It is also continuous with the post-Dobbs landscape, where prosecutors have initiated over 400 criminal cases related to pregnancy, pregnancy loss, or birth in just two years. The same state apparatus that criminalizes miscarriage now gets to decide whether a woman’s travel plans invalidate her child’s citizenship. Clarence Thomas and Samuel Alito gave the intellectual cover in their dissents, Thomas railing against “foreign birth tourists” and Alito calling the conferral of citizenship on such children “grotesque.” Within hours of the Court’s ruling, Assistant Attorney General Colin McDonald ordered DOJ staff to “prioritize the investigation and prosecution of birth tourism schemes.” The orders are the product of that directive.
Unknown (Public domain) via Wikimedia CommonsThe ACLU’s Cody Wofsy put it plainly: “Birthright citizenship is guaranteed by the 14th Amendment, and no amount of executive orders is going to change that.” He is right, and being right has never been enough. These orders will be challenged. They will likely be struck down. But between now and that ruling, real people will be stopped, questioned, denied documents, and separated from their children under a legal framework that treats pregnancy as probable cause.
The Fourteenth Amendment says what it says. The fight is not over what the text means. It is over who has the power to enforce it against an administration that treats constitutional guarantees as suggestions and pregnant women as suspects. Organize, show up, and make the cost of compliance higher than the cost of resistance.