US President Donald Trump has signed two executive orders seeking to restrict birthright citizenship in specific circumstances and strengthen enforcement against what his administration describes as “birth tourism.”
The measures, signed on August 6, 2026, follow the administration’s defeat in Trump v. Barbara. In that case, the US Supreme Court struck down Trump’s January 2025 order, which sought to deny citizenship to certain children born in the United States when their parents were undocumented immigrants or temporary visa holders.
The Court ruled 6-3 on June 30 that the earlier order violated the Citizenship Clause of the Fourteenth Amendment. The clause grants citizenship to people born or naturalized in the United States who are “subject to the jurisdiction thereof.”
The administration has now returned with two more targeted measures. The first identifies specific categories of children that the federal government should not recognize as citizens. The second directs immigration authorities to prevent foreign nationals from using nonimmigrant visas to enter the country for the purpose of giving birth.
First Order Identifies Four Categories for Exclusion
The first order, titled “Continuing to Protect the Meaning and Value of American Citizenship,” directs federal agencies not to issue or accept documents recognizing a person as a US citizen when neither parent is a citizen and one of four conditions applies.
1. Children of People Classified as Alien Enemies
The first category applies when either parent is classified as an “alien enemy.”
The order defines this category to include members of organizations designated by the US government as foreign terrorist organizations and individuals classified as specially designated global terrorists.
This expands the historical exclusion for children born to members of hostile forces occupying US territory. The new language is broader because it also covers designated individuals and organizations without requiring a traditional foreign military occupation.
2. Children of Foreign Government Employees
The second category applies when either parent is a foreign government employee.
It includes ambassadors, foreign nationals employed by an embassy or consulate, people working for a foreign government in an official capacity, and employees of international organizations who possess immunity.
US law has long excluded children born to accredited foreign diplomats from automatic citizenship because diplomatic immunity means their parents are not fully subject to US jurisdiction.
The new order appears to extend this exclusion beyond accredited diplomats to other foreign government employees. Its legal effect may therefore depend on whether those employees possess diplomatic or comparable immunity.
3. Children Connected to Commercial Birth Arrangements or Fraud
The third category applies when either parent engaged in a commercial transaction to obtain or access birthright citizenship, or committed fraud to obtain it.
The order identifies two types of arrangements within this category.
The first involves a commercial transaction intended to ensure that a child’s mother is present in the United States or a US territory when she gives birth.
The second involves a commercial arrangement with a surrogate who is present in the United States or a US territory for the birth.
This provision appears intended to prevent citizenship from being obtained through organized birth tourism or commercial arrangements structured around giving birth on US soil.
However, the order does not explain what evidence would demonstrate that a transaction was intended to obtain citizenship rather than medical care, surrogacy services, or another legitimate purpose.
4. Births in Certain US Territories or Territorial Waters
The fourth category covers children born in a US territory or US territorial waters where citizenship has not been conferred by federal statute.
Citizenship rules are not identical across all US territories. The order directs federal agencies not to recognize citizenship solely based on a birth in a location where Congress has not granted it by law.
Surrogacy Provision Could Raise New Legal Questions
The inclusion of commercial surrogacy is one of the most significant elements of the first order.
It could affect foreign intended parents who enter into an arrangement with a surrogate located in the United States, even when the parents themselves are outside the country.
The order does not specify how authorities will distinguish between an ordinary international surrogacy arrangement and one designed primarily to obtain US citizenship for the child. It also does not explain whether factors such as the child’s genetic relationship to the intended parents, the parents’ nationality, or their immigration intentions will be considered.
Ohio State University law professor César Cuauhtémoc García Hernández told the Associated Press that neither the Fourteenth Amendment nor the Supreme Court’s decisions interpreting it address surrogacy.
The provision may therefore produce a new legal dispute over whether the circumstances of a surrogacy arrangement can affect the citizenship of a child born in the United States.
Second Order Targets Birth Tourism
The second order, titled “Ending Birth Tourism,” focuses on visa issuance and entry into the United States.
It defines birth tourism as a foreign national entering the United States on a nonimmigrant visa for the purpose of giving birth on US soil. The definition also covers foreign nationals who facilitate another person’s entry for that purpose.
The order gives the Secretary of State and the Secretary of Homeland Security authority to introduce the rules and operational policies needed to implement the restrictions.
Possible actions listed in the order include:
- Refusing visas or other travel authorizations.
- Denying entry at a US port of entry.
- Revoking existing visas or travel authorizations.
- Removing individuals who previously engaged or intend to engage in birth tourism.
- Permanently barring individuals who enter or attempt to enter for that purpose.
- Taking action against people, businesses, and organizations that facilitate birth tourism inside or outside the United States.
The secretaries may grant exemptions on humanitarian grounds or when a person’s entry is considered to be in the national interest.
Birth tourism was already restricted under US visa rules. Since 2020, traveling to the United States primarily to give birth and obtain citizenship for a child has not been considered a permissible basis for obtaining a B visitor visa.
The earlier rule focused on whether a person qualified for a visa. It did not change the citizenship status of a child born in the United States. The new measures go further by combining immigration enforcement with an attempt to deny federal recognition of citizenship in certain cases.
Federal Agencies Given 30 Days to Explain Implementation
The first executive order directs the Department of State, Department of Justice, Department of Homeland Security, Social Security Administration, and other federal agencies to align their policies with its provisions.
All relevant executive departments and agencies must publish implementation guidance within 30 days of August 6.
That guidance should clarify how the government will identify affected cases, what evidence parents may be required to provide, and how the order will affect passports, Social Security records, and other citizenship documents.
It may also explain how authorities will assess commercial surrogacy arrangements, foreign government employment, alleged parental fraud, and suspected connections to designated organizations.
Until the guidance is published, the practical reach of the order remains uncertain.
Legal Challenges Are Expected
The two orders are likely to face different levels of legal scrutiny.
The executive branch already holds broad, well-established authority over visa issuance and admission to the United States. Legal analysts generally expect this to place the second order’s restrictions on birth tourism on firmer legal ground, particularly in cases where an applicant misrepresents the purpose of travel.
The first order raises more complex constitutional questions, since it seeks to determine whether a child born on US soil should be recognized as a citizen.
Courts may need to decide whether the president can expand the established exceptions to birthright citizenship through executive action, and whether parental employment, affiliations, fraud, or commercial arrangements can change a child’s constitutional status.
For now, neither order ends birthright citizenship in the United States. Their wider impact will depend on the forthcoming agency guidance and the outcome of the legal challenges expected to follow.
