What to watch as legal battle over birthright citizenship heats up again

President Trump’s second attempt to restrict birthright citizenship tees up another legal battle over the meaning of the 14th Amendment.

The administration designed Trump’s new orders more narrowly in hopes of withstanding legal scrutiny, but the American Civil Liberties Union (ACLU) and Democratic-led states are already signaling they’ll bring them to the courts.

Here’s what to watch as legal scrutiny heats up.

What the justices have said about ‘birth tourism’

Trump’s announcement focuses on “birth tourists,” referring to people who come to the country to give birth so their child can get automatic U.S. citizenship.

“Wealthy people are building businesses around birthright citizenship. That’s not the way it was supposed to work. It’s a disgrace,” Trump said in the Oval Office as he signed the new orders.

It’s been an ever-present topic in the legal battle.

When the Supreme Court ruled 6-3 against Trump’s original attempt on birthright citizenship, Chief Justice John Roberts emphasized that the Constitution’s citizenship guarantee is broad. People who come to the U.S. for business or pleasure are not exempted, he noted.

“To the contrary, they were subject to that jurisdiction for as long as they remained here—and any children born to them were American citizens under the Fourteenth Amendment,” Roberts wrote for the majority.

The chief justice didn’t use the term birth tourists back in June. But the dissenters made the implications clear.

“As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’” Justice Samuel Alito noted.

Justice Clarence Thomas similarly said the decision had recognized “a constitutional right to citizenship for the children of all foreign birth tourists and illegal aliens.”

Roberts didn’t disagree. But he has long rebuffed the notion that it should’ve affected the outcome.

“You do agree that that has no impact on the legal analysis before us?” he pressed the Trump administration at oral arguments earlier this year.

Trump’s directive is more than birthright citizenship

Trump’s new crackdown on “birth tourists” does include a direct attempt to restrict their child’s citizenship. It would block it if someone committed “fraudulent activity” or made a “commercial transaction” in coming to the U.S. specifically to give birth, including the use of a surrogate. 

But the president’s directive includes a second, legally distinct piece.

The president is claiming his authority to further restrain the already illegal practice of birth........

© The Hill