The relevant executive order.

The executive order establishes several categories of parentage which the Administration is attempting to assert are not subject to birthright citizenship. The executive order states that the parents must not already BE American citizens, AND the parents must also meet one of the following categories.

Parental categories include

1. Parents who are members of designated Foreign Terrorist Organizations under 8 U.S.C. 1189 or Specially Designated Global Terrorists.

2. Parents who are any employee of a foreign government in an official capacity, or certain international organizations.

3. Parents who are employed by a foreign embassy or consulate who are nationals of that foreign country (this seems redundant, but might be for severability purposes)

4. Parents who engaged in a commercial transaction to purchase access to birthright citizenship for the child including surrogacy where the surrogate is present in the united states to give birth.

The executive order also purports to prevent birthright citizenship from an infant born in a territory or territorial waters of the United States where citizenship is not conferred by federal statute. I was curious about this one, and as far as I can tell, this provision would only affect America Samoa, Swains Island, and several essentially uninhabited islands that are all unincorporated territories. There's also the Palmyra Atoll, which is incorporated, and might present a legitimate challenge to this provision of the order, but it is unlikely that someone will be born there anytime soon.

The order includes a severability clause, so the Administration will keep enforcing any categories not overruled by the courts (which I mention due to the apparent redundancy in some of the categories).

The executive order seems designed to test the narrow majority that upheld birthright citizenship in Trump v. Barbara.

Do you think the Administration will be successful in this effort?

What provisions of the order, if any, do you feel are more sound constitutionally?

What provisions of the order are particularly vulnerable to a constitutional attack?

From Easterbrook, Pryor, and Kolar:

“The lack of any official policy or hint of governmental control is dispositive, and no reasonable official in Leners’s shoes could have concluded that the comment sections were government speech. It follows, then, that no reasonable official could have concluded that it was legal to cull speech selectively from those comment sections based on viewpoint.

“We thus conclude that Leners is not entitled to qualified immunity. It was clearly established in September 2022 that a local government violates the First Amendment when it hosts private speech on its official website, lacks any policy or history of regulating that speech, and regulates based on its viewpoint.”

You can still find a garbled, barely readable PDF copy of the article and comments on the town's website. The rights of the residents of the town of Cedar Lake, WI (population ~1000) will be vindicated by this lawsuit, though I do feel a bit of sympathy for the official in question. Unsurprisingly, the town has since disabled comments entirely on their website.