Two new birthright citizenship executive orders signed by President Donald Trump on 6 August are already before the federal courts, less than two months after the Supreme Court of the United States ruled unanimously against the same legal position in Trump v. Barbara.
The orders target what the administration calls ‘birth tourism,’ purporting to deny citizenship to children born in the United States when a parent is lawfully but temporarily present, including where a commercial transaction was arranged to ensure the mother’s presence in the country for the birth. That framing is narrower than Trump’s original January 2025 order, Executive Order 14160, which had sought to strip birthright citizenship from children of all unlawful immigrants and lawful temporary visitors alike.
What the Supreme Court Actually Decided
The Court’s holding in Trump v. Barbara is unambiguous on the central point. ‘Children born of parents unlawfully or temporarily present in the United States,’ the majority wrote, ‘satisfy both elements of the Citizenship Clause of the 14th Amendment: they are born in the United States and subject to the jurisdiction thereof. Under the Constitution, they are citizens at birth.’
That language covers birth tourists directly. A foreign national present in the United States on a valid visa is subject to its jurisdiction. The child born during that visit is therefore a citizen at birth, regardless of the commercial arrangements that preceded the trip.
The vote breakdown in Trump v. Barbara is itself a matter of some dispute between sources. Oyez records the decision as 5-4, with Chief Justice John Roberts authoring the majority joined by Justices Sotomayor, Kagan, Barrett, and Jackson. SCOTUSblog lists the vote as 6-3. The two sources appear to differ on how one concurrence or partial dissent is classified; the precise margin remains unresolved between them. What is not in dispute is that Roberts wrote the controlling opinion, and its reasoning bars the core of what the new orders attempt.
The April 1 oral arguments had already exposed the weakness of the administration’s position on birth tourism. Solicitor General John Sauer argued that ‘the 19th century Framers of this amendment’ could ‘not possibly’ have intended to permit the modern practice. Roberts countered that contemporary policy concerns do not alter the original meaning of the constitutional text, asking Sauer directly: ‘You do agree that that has no impact on the legal analysis before us?’
Sauer recovered to argue that ‘we’re in a new world now,’ one ‘where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.’ Roberts’s response was immediate: ‘Well, it’s a new world. It’s the same Constitution.’
The New Birthright Citizenship Executive Orders in Court
The first challenge to the August orders was filed within days by lawyers from the American Civil Liberties Union and allied civil rights groups, the same coalition that prevailed in Trump v. Barbara. ACLU National Legal Director Cecillia Wang had argued the original case before the Supreme Court on behalf of the plaintiffs.
The plaintiffs are before U.S. District Judge Joseph LaPlante, the same judge who blocked Executive Order 14160 in July 2025. LaPlante’s conduct in that earlier litigation left little doubt about his view of the administration’s legal position: ruling on 10 July 2025 that his decision to grant a preliminary injunction was ‘not a close call,’ he found that the deprivation of United States citizenship amounted to irreparable harm, according to the New Hampshire Bulletin. He stayed that ruling until 17 July to permit the government to appeal.
The ACLU is asking LaPlante to clarify that the August orders fall outside the narrow historical exception to birthright citizenship that the Supreme Court reaffirmed in its 30 June decision: the rule, long established, that children born to accredited foreign diplomats are not subject to United States jurisdiction and therefore not citizens at birth. Everything beyond that exception, the plaintiffs argue, is foreclosed by Trump v. Barbara.
The background to the Supreme Court case is set out in detail by the ACLU: the original class action, Barbara v. Donald J. Trump, was filed immediately after the Court’s 27 June 2025 ruling in Trump v. CASA, Inc., which had narrowed the scope of nationwide injunctions in the administration’s favour. The class was provisionally certified and the order blocked against all babies born in the United States on 10 July 2025.
Subject to any onward appeal, the district court’s prior rulings and the Supreme Court’s controlling language in Trump v. Barbara leave the administration with very little legal room to manoeuvre. The question for the coming weeks is whether LaPlante issues a rapid clarifying order or whether the government seeks to distinguish the new orders sufficiently to force a fresh Supreme Court hearing. Given Roberts’s ‘same Constitution’ formulation, that is a difficult path to walk.
