On the first day of his second administration, President Trump issued an executive order purporting to restrict citizenship of U.S.-born children based on their parents\u2019 citizenship or immigration status. In the process, the order discriminates between mothers and fathers and adopts genetic definitions of \u201cmother\u201d and \u201cfather\u201d to exclude any parent who is not the child\u2019s \u201cimmediate …biological progenitor.\u201d<\/p>\n
Courts and scholars have condemned this attempt to restrict birthplace citizenship as a violation of both the Fourteenth Amendment and the Immigration and Nationality Act. Yet there has been little, if any, discussion of the new family-based conditions in the order. Unconditional birthplace citizenship is a simple, bright-line rule, but the order\u2019s hybrid citizenship regime is a complex mess. Its new rules would focus on parental immigration status, with different requirements for mothers as opposed to fathers. In defining who counts as \u201cmothers\u201d and \u201cfathers,\u201d it adopts a genetic essentialist definition of parentage at odds with the definitions of both state laws and federal law for children born to citizens abroad. Absurdly, some of the U.S.-born children excluded under the order would be citizens if born to the same parents abroad.<\/p>\n
This Article provides a new perspective on why the executive order is invalid, reflecting ahistorical categories and assumptions and ignoring both traditional marital presumptions and modern reproductive technology. The order is unauthorized by the text and intent of both the Immigration and Nationality Act and the Fourteenth Amendment citizenship clause, and it violates \u201cequal protection\u201d principles. It is pure invention, an act of executive lawmaking invalid under our constitutional system.<\/p>\n