Trump’s tougher round-two birthright citizenship strategy hinges on key legal distinction, experts say

Conservative legal experts say President Donald Trump’s latest attempts to narrow birthright citizenship and crack down on birth tourism may have stronger legal footing than his first effort.

After the Supreme Court ruled 6-3 in June that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the 14th Amendment, Trump issued two new executive orders taking narrower approaches to citizenship and birth tourism.

The first, signed Aug. 6, directs federal agencies to withhold documents recognizing citizenship from certain children born when neither parent is a U.S. citizen, including some whose parents are members of designated foreign terrorist organizations , foreign-government employees or participants in transactions or fraud intended to obtain birthright citizenship.

Experts from the Manhattan Institute, America First Legal and the America First Policy Institute, all right-of-center organizations, argued that Trump’s new order is narrower than his first and is built around longstanding exceptions to birthright citizenship that they believe could apply here.

TRUMP SIGNS EXECUTIVE ORDERS TARGETING BIRTHRIGHT CITIZENSHIP, BIRTH TOURISM AFTER SUPREME COURT SETBACK

"The Supreme Court has long recognized that there are exceptions to the 14th Amendment's birthright citizenship clause for the aliens who are considered children of invading armies or the children of ambassadors," America First Policy Institute senior fellow Chad Mizelle, who previously served as the Justice Department’s chief of staff, told Fox News Digital. "So in a situation where you have a terrorist here contrary to the laws of the United States … who is looking to do harm … That has long been recognized by the Supreme Court, and basically going back to the history of our country, as recognized exceptions to any sort of claim of birthright citizenship."

United States v. Wong Kim Ark, decided by the Supreme Court in 1898, recognized exceptions to birthright citizenship for children of diplomats and children of alien enemies born during a hostile occupation. Trump’s order argues that members of foreign terrorist organizations can fall within that enemy exception.

TRUMP BIRTHRIGHT CITIZENSHIP FIGHT COMES ROARING BACK WITH ‘INVADERS’ PLAY AFTER KAVANAUGH ROADMAP

"The Supreme Court ruled that you can't restrict birthright citizenship to kids of people in the country temporarily or illegally," Manhattan Institute director of constitutional studies Ilya Shapiro told Fox News Digital. "But what the new executive order does is it goes to one of the classic exceptions to birthrights citizenship, two of the classic exceptions, those who owe an allegiance to a foreign government, meaning employed by a foreign governing diplomats otherwise, and those who are invaders of foreign armies and terrorists, members of foreign organizations hostile to America, certainly qualify in that category."

David Bier, the director of immigration studies at the libertarian Cato Institute, however, argued that the president’s attempt to redefine what constitutes an alien enemy without going through Congress puts the administration on legally shaky ground.

"Congress ultimately establishes what it means to be subject to U.S. jurisdiction," Bier told Fox News Digital. "There's this very limited exception for accredited diplomats and everyone else in the United States is subject to U.S. laws so the idea that the president himself on his own authority can decide who is subject U. S. jurisdiction and U.S. laws is really a radical expansion and assertion of executive power and really would be unprecedented in the history of the United States."

JACKSON ACCUSES THOMAS OF ECHOING INFAMOUSLY RACIST COURT DECISION IN BIRTHRIGHT CITIZENSHIP CLASH

"I really do think this case is testing a different proposition from the earlier case," Bier added, explaining that the issue at hand has more to do with executive power than birthright citizenship. "And I think it's a lot more questionable as well."

Amanda Frost, a professor at the University of Virginia School of Law, pointed out that United States v. Wong Kim Ark specifies that only children of enemies "occupying" some portion of the country are barred from citizenship at birth, meaning that Trump’s order would not apply to terrorists simply residing within the country. She said the Trump administration could potentially expand who is legally defined as a diplomat to preclude more people from birthright citizenship, but explained such a move would make it difficult to prosecute individuals for criminal offenses, a concern shared by Bier.

Frost and Bier both believe the new executive order should be ruled unconstitutional.

Some have floated the issue of standing as a potential problem for those looking to challenge Trump's order. Legal standing requires plaintiffs to show they suffered or imminently face a concrete injury caused by the defendant that a court can remedy.

"It's going to be interesting to see who actually does have standing to challenge this order," America First Legal co-founder and president Gene Hamilton told Fox News Digital. "Is there somebody who thinks that they're going to swept up in the definition of a foreign terrorist organization? And if so, it would be kind of fun to see them try to sue the government or have someone sue on their behalf."

Trump’s new order is already facing legal resistance.

TRUMP TO ASK SUPREME COURT TO REHEAR BIRTHRIGHT CITIZENSHIP CASE AFTER 'INSANE DECISION'

The same groups who challenged his initial order are now arguing that his new one unlawfully creates exceptions to birthright citizenship that conflict with the Supreme Court’s June ruling. The order remains on the books but is not scheduled to take effect until Sept. 6, with a Maryland judge scheduled to hear an injunction request Aug. 28 and a related motion still pending in New Hampshire.

Issued on the same day as the first new executive or...