Tag Archive for: Executive Orders

Cyrus D. Mehta & Damira Zhanatova

A Maryland Court Blocks Trump’s Latest End-Run Around Birthright Citizenship

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As we discussed in our previous blog, the Trump administration’s August 6, 2026 executive orders were not genuine efforts to comply with the Supreme Court’s decision in Trump v. Barbara. They were an attempt to keep attacking birthright citizenship by changing the labels. The U.S. District Court for the District of Maryland in  Casa v. Trump confirms exactly that. On September 2, 2026, Judge Deborah Boardman held that the administration’s 2026 executive order is “almost certainly unconstitutional” as applied to the certified class and entered a preliminary injunction blocking its enforcement against those children.

The 2026 order identifies several categories of persons it asserts are not covered by birthright citizenship, including those with a parent who is an “alien enemy,” such as a member of a designated Foreign Terrorist Organization or a Specially Designated Global Terrorist; those with a parent who is a foreign government employee, including ambassadors, certain embassy or consular employees, officials of foreign governments, or employees of international organizations with immunity; those whose parent engaged in a commercial transaction or fraudulent activity to obtain or access birthright citizenship, including arrangements to ensure that the mother or a surrogate is present in the United States or a U.S. territory to give birth; and those born in a U.S. territory or territorial waters where citizenship is not conferred by federal statute.

In Trump v. Barbara, the U.S. Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present here are citizens at birth under the Fourteenth Amendment. The Maryland court emphasized that the Supreme Court had already decided that children in the identical certified class “satisfy both elements of the Citizenship Clause: they are ‘born . . . in the United States’ and ‘subject to the jurisdiction thereof,’” and therefore “are citizens at birth”. That should have ended the matter. Instead, the administration issued a new executive order purporting to identify categories of U.S.-born children who supposedly fall outside the rule announced in Barbara. Judge Boardman correctly recognized that these new carveouts “bear little to no resemblance to the ‘narrow exceptions’ to the rule of citizenship by birth recognized by the Supreme Court in Barbara” and concluded that “[t]he 2026 Executive Order is almost certainly unconstitutional as applied to the certified class”.

The plaintiffs feared, for instance, that they could be deprived of citizenship under the 2026 executive order if their parents were rightly or wrongly  be labeled an “alien enemy,” and the child could therefore be denied citizenship, “even though they do not fall within a recognized exception to birthright citizenship.”  The court cited the example of a parent who could be characterized as an alien enemy because of their tattoos. The plaintiffs further suggested that they could be  denied citizenship under the birthright tourism clause of the executive order because their mother bought a plane ticket to come to the United States, where she then gave birth, and this  might constitute a  “commercial transaction” that falls within the second executive order’s sweep.

The opinion is especially compelling because it treats the case as one about fidelity to Supreme Court precedent, not creative relitigation. Judge Boardman put it: “The Supreme Court has spoken: Children in the certified class are ‘citizens at birth.’” She then added the line that should end the administration’s latest maneuver: “Barbara is the law of the land. The President must follow it”. Once the Supreme Court has declared that these children are citizens at birth, the Executive Branch cannot order agencies to deny or refuse to recognize that citizenship.

That matters in practical terms because these orders are not abstract. They direct agencies to act. Executive Order 14160 instructed federal agencies that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” for certain U.S.-born children. And when agencies act on an unconstitutional citizenship theory, the harm is immediate. Judge Boardman explained that citizenship is a “most precious right,” and that the threatened denial of citizenship causes irreparable harm because citizenship is “the right to have rights – to freely participate in our political community”.

The “birth tourism” provision is no more valid than the administration’s other carveouts. The 2026 executive order purported to deny citizenship where either parent engaged in a “commercial transaction to purchase or access birthright citizenship,” including commercial arrangements to ensure that the mother, or a surrogate, is present in the United States to give birth. But that theory still collides with Barbara. Whatever one thinks about a parent’s reason for coming to the United States, Barbara does not permit a motive-based exception to birthright citizenship. The Supreme Court’s rule did not turn on whether a parent came temporarily, paid for travel, or had a suspect motive for entering the United States. The Supreme Court held that children born to parents who are unlawfully or temporarily present in the United States are citizens at birth. Congress used the same rule in 8 U.S.C. § 1401(a), which provides that persons “born in the United States, and subject to the jurisdiction thereof,” “shall be nationals and citizens of the United States at birth”. In other words, even if the government characterizes a parent’s trip as “birth tourism,” the child’s citizenship still turns on the child’s birth in the United States and subjection to U.S. jurisdiction. Judge Boardman therefore refused to let the government evade Barbara by repackaging disapproval of parental motive into a new exception to citizenship.

Judge Boardman’s opinion recognizes that the case is about preserving the citizenship of children the Supreme Court has already declared to be citizens. The administration cannot use a new executive order to do indirectly what Barbara forbids directly. As Judge Boardman explained, the relevant question was whether the plaintiffs were entitled to preliminary relief because the order was likely unconstitutional as applied to the certified class, and “[t]he answer to that question is yes”.

The same rule of birthright citizenship appears not only in the Fourteenth Amendment but also in 8 U.S.C. § 1401(a). That statute does not empower the President to create new disfavored subclasses of U.S.-born children. To the contrary, it codifies the ordinary rule of citizenship at birth for those born in the United States and subject to its jurisdiction. That is why the administration’s renewed effort collides not just with the Constitution and Supreme Court precedent, but also with Congress’s own enacted citizenship rule.

The Constitution does not permit the President to sort U.S.-born children into favored and disfavored categories based on their parents’ immigration status, alleged affiliations, motives for travel, or manner of entry. Barbara rejected that project, and Judge Boardman’s injunction makes clear that the administration cannot revive it by administrative ingenuity. Birthright citizenship remains what it has long been: a constitutional and statutory guarantee, not a presidential favor.

But Trump’s attack on birthright citizenship is unrelenting. An interim final rule dated September 4, 2026 implements the foreign-government-employee portion of the 2026 Executive Order by defining “foreign government employee” to include ambassadors, certain embassy or consular employees, persons employed by a foreign government in an official capacity, and persons employed by an international organization that possesses international-organization immunity. That definition is broader than the narrow birthright-citizenship exception traditionally associated with foreign diplomatic officers, and it may sweep in people whose roles are far removed from the classic ambassadorial or diplomatic function, such as a janitor employed by the United Nations or an administrative assistant working in a consular mission.

Fortunately, the administration concedes that the interim final rule will not take effect so long as the injunction in Casa v. Trump remains in place. But that is cold comfort. Trump’s assault on birthright citizenship persists, and he will keep trying to chip away at it with impunity despite Trump v. Barbara. The courts must continue to hold the line, because citizenship by birth is a constitutional guarantee, not a privilege the President may narrow by executive fiat against children born to parents in the United States he does not like.

David Isaacson

More Alternative Facts: The Orwellian Abuse of Language in Connection with Donald Trump’s Recent Executive Orders on Immigration

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Following an incident in which White House press secretary Sean Spicer provided false numbers regarding the size of the crowds at the inauguration of Donald Trump as President, Trump senior advisor Kellyanne Conway memorably stated on NBC’s “Meet the Press” that Mr. Spicer had merely been providing “alternative facts.”  This claim has, deservedly, been the subject of much ridicule.  As host Chuck Todd stated during that same interview in response to what one article rightly termed an “Orwellian turn of phrase”: “Alternative facts are not facts.  They’re falsehoods.”  Such disregard for the truth has been a common feature of the early days of the Trump Administration.

The same Orwellian approach to language has been evident in the Trump Administration’s recently issued executive orders regarding immigration.  Both the January 25, 2017, Executive Order entitled “Enhancing Public Safety in the Interior of the United States” and the January 27, 2017, Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” involve in different ways a very troubling relationship with the notion of truth.  (The orders also have a number of other deeply objectionable aspects, too many to fully address in one blog post, although many other blog posts, editorials, and op-eds by other authors on the subject are well worth reading.)

The January 25 executive order, among other changes to enforcement policy, creates a list of priorities for removal which, at first glance, is intended to focus in large part on criminals.  As the New York Times explained in an article published the day the order was issued, however, the executive order in effect defines the notion of a criminal for these purposes to include people charged with a criminal offense but never convicted of anything, as well as anyone who has “committed acts that constitute a chargeable criminal offense” (or, more precisely, anyone believed by the immigration authorities to have done so).

These priorities thus include people quite far afield from any traditional notion of what it means to be a “criminal”.  It is, or used to be, a tradition of long standing in this country that one charged with a crime is presumed innocent until proven guilty.  The mere fact that someone has “been charged with any criminal offense, where such charge has not been resolved,” to quote from Section 5(b) of the January 25 executive order, does not make them a criminal.  They might be innocent of any wrongdoing, and might be acquitted as the criminal case moved forward.  The idea that any technically removable person will become a high priority by virtue of an unresolved charge, of which they may be completely innocent, is therefore very troubling.  While merely being a priority is not itself a basis for removal, the executive order implies that the Administration could pursue removal of someone facing unresolved criminal charges who had overstayed a nonimmigrant admission for a short period of time, or failed to file a change of address and could not sufficiently establish that the failure was non-willful or excusable.

The notion that anyone who has “committed acts that constitute a chargeable criminal offense” will be a priority for removal even if not convicted of any charge is also troubling, and has broader implications than may be apparent at first glance.  Entry without inspection is a misdemeanor under 8 U.S.C. 1325, for example, so this priority could be read to apply to anyone who crossed the border without authorization, at least as an adult—even if that entry took place many years ago.

The January 27 executive order, which bars entry by nationals of Syria, Iraq, Iran, Somalia, Yemen, and Libya for 90 days subject to possible future extensions, and suspends all refugee admissions for 120 days, rests even more fully on a disconnect from the truth. It purports to be focused on protecting the U.S. from “Terrorist” entry, and yet it applies to many people who are extremely unlikely to be terrorists.  Besides a distaste for refugee admissions generally, it seems to be based on antagonism towards predominantly Muslim countries, and has thus been referred to as a “Muslim ban”—although it ironically does not apply to the few predominantly Muslim countries whose citizens were responsible for the attacks against the United States on September 11, 2001 that it invokes, such as Saudi Arabia, the country of citizenship of 15 of the 19 September 11th hijackers.  (It has been pointed out that the ban appears to leave out countries where Donald Trump has done business.)  Instead, the entry ban focuses on countries which either Congress or DHS previously deemed worthy of being a basis for exclusion from the Visa Waiver Program in the event that an otherwise VWP-eligible person had dual nationality in them or had visited them—an exclusion which, while it had some perverse effects, simply meant that such people had to apply for visas and thus be subjected to additional scrutiny.  This new order, however, applies to people who already have been granted visas (or documents to travel to the United States as refugees, which are not technically quite the same thing), following intense scrutiny and under circumstances that make it quite unlikely they would actually be terrorists.

Perhaps the first and most obvious example of those who can be deemed potential “terrorists” only by Orwellian abuse of the word are those who were granted permission to immigrate specifically due to their service to the United States, such as the special immigrants issued visas based on their work for the U.S. military in Iraq.  The lead plaintiff in the ACLU lawsuit that resulted in the first temporary injunction blocking deportation of those affected by the executive order, Hameed Khalid Darweesh, was a former U.S. Army translator in Iraq who had received his special immigrant visa based on that service and had been twice targeted by terrorists in Iraq because of that service.  The Pentagon has now indicated that it will submit to the White House a list of Iraqis who have worked alongside the United States so that they may possibly be exempted from the entry ban.  That there was no exemption of such people from the January 27th executive order, and no promise even now that such people will be exempted, is even more outrageous than the executive order itself. The notion that blocking Mr. Darweesh’s entry would protect the U.S. from “terrorists” is a falsehood much graver than Mr. Spicer’s original alternative facts regarding crowd size.

While perhaps the most obvious example, however, those who served the U.S. military in Iraq are far from the only people affected by the January 27 executive order who cannot reasonably be associated with terrorism.  The executive order at least temporarily bars refugees from all countries of the world, including countries with no connection whatsoever to any past terrorist attack against the United States.  It also bars refugees persecuted by the very same extremist groups which might seek to do us harm, and whose cases have undergone extensive vetting before they reach the stage of applying for admission.  The January 27 executive order seemingly ignores the extensive screening that already exists for all refugees and visa applicants.

Despite all this, the Administration has sought to remove people covered by the January 27 executive order from the United States as soon as they arrive, without taking any time to investigate whether they might conceivably be reasonably suspected of any connection with terrorism.  Fortunately, the courts have stepped in, with both the aforementioned injunction in Mr. Darweesh’s class action and several others.  These injunctions did not come soon enough for all of the innocent victims of the executive order, however.  At least one habeas plaintiff was removed from the United States while an application for a temporary restraining order was pending, although Judge Dolly Gee of the U.S. District Court for the Central District of California has now ordered that Ali Vayeghan be returned to the United States.  Others, however, were removed or coerced to withdraw their applications for admission under circumstances that make their return less likely.

The Administration even initially sought to apply the entry ban to Lawful Permanent Residents (LPRs) of the United States with citizenship in one of the 7 affected countries—that is, people with “green cards”, who have already been cleared to live here permanently.  That was extremely legally questionable in the view of this author, given that the power relied upon by the January 27 executive order, section 212(f) of the Immigration and Nationality Act, authorizes the President to suspend the “entry” of certain aliens, and many LPRs returning from brief trips are under section 101(a)(13)(C) of the INA not to “be regarded as seeking an admission into the United States”.  Since section 101(a)(13)(A) of the INA defines “admission” as  “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” it would appear to follow that one who is inspected, and should not be regarded as seeking admission, also should not be regarded as seeking entry.  That would also be consistent with the purpose of section 101(a)(13)(C) to codify a modified version of the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held under prior law that an LPR did not make an “entry” following an innocent, casual, and brief departure from the United States.   The issue may not need to be resolved in litigation in the near future, however, because the DHS Secretary, General John Kelly, determined Sunday that “the entry of lawful permanent residents is in the national interest”, and so “absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in [DHS’s] case-by-case determinations.”  That is, LPRs from the affected countries will be allowed to return to the United States in most instances.  It is consistent with the theme of this blog, though, that the Administration initially sought to redefine “entry” as something other than what it ought to mean under immigration law, and still evidently reserves the right to do so if it feels it is in possession of “significant derogatory information.”

Nor are the redefinition of “entry” and the basic disconnect regarding the relevance of this entry ban to “terrorism” the only alternative facts underpinning the January 27 executive order.  The order indicates that when refugee admissions resume, preference is to be given to religious minorities, which has been understood as intended to mean Christians in predominantly Muslim countries (although there are countries where Muslims are in the minority as well).  Mr. Trump’s suggestion that Christian refugees had previously had “no chance” of coming to the United States is, however, also untrue.  As the New York Times has explained, “In 2016, the United States admitted almost as many Christian refugees (37,521) as Muslim refugees (38,901), according to the Pew Research Center.”  Many Christian leaders have denounced the entry ban.

There is also Mr. Trump’s false claim that “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months.”  In fact, the narrowly focused increase in screening of refugees and applicants for Special Immigrant Visas from one country, during which some Iraqis nonetheless continued to be admitted to the United States each month of the six months in question, is in no way “similar” to a months-long outright ban on entry of nearly all citizens from seven countries.  Moreover, the heightened screening created in 2011 is still in place, so the fact that scrutiny of Iraqi refugees and visa applicants was increased six years ago cannot reasonably be offered as a reason for suspending their entry now.

The fictional Superman was known for defending “truth, justice, and the American way.”  Based on his disregard for the truth, Donald Trump has perpetrated a great injustice, one inconsistent with the American way of hospitality towards immigrants and refugees.  Several Democratic leaders have indicated that they will propose bills in Congress to overturn the January 27 executive order, and Democratic Senate leader Chuck Schumer unsuccessfully attempted Monday to get consent for a vote on such a bill.  Such bills face highly uncertain prospects in the Republican Congress, given that House Speaker Paul Ryan seemed to express support for the executive orders in his statement on the subject, but we can hope—and, for those of us whose representatives are not already on record in favor, can contact them to urge their support.  Donations to the ACLU in connection with its pending lawsuit against the January 27 executive order are another way to show opposition to the entry ban.

Alternative facts are bad enough when they concern something as trivial as crowd size.  That they would be relied upon to harm innocent immigrants is unacceptable.