Will Trump’s Plan B on Birthright Citizenship Work?
If at first you don’t succeed...
Quick flag: Later this week, the Demoratic Party is set to formally approve its new 2028 presidential primary calendar, which would revoke Iowa’s early-state status and make South Carolina the party’s first-in-the-nation primary.
I haven’t touched on this issue in the newsletter yet, but luckily it’s the topic of my latest YouTube video! If you’re curious about how Iowa got to spend so many decades at the top of the calendar in the first place, why Democrats are swapping it out, and how that will impact the 2028 race, here’s the video for you:
Now, onto our regularly scheduled programming:
If the central story of President Trump’s second term has been his quest for complete control, then he continues to run into disappointments.
His own U.S. attorney here in D.C., longtime friend and former Fox News host Jeanine Pirro, has ended — against Trump’s wishes — the prosecution of an Olympic canoeist who Trump has accused of vandalism in the nation’s capital. His party’s top Senate leader, John Thune, allowed the chamber to leave this weekend for its August recess without advancing a party-line measure that would have included parts of Trump’s beloved SAVE America Act.
Iran is issuing new demands in exchange for reopening the Strait of Hormuz, while a U.S. munitions shortage has limited Trump’s options to return to military escalation. (Trump told Axios that his new strategy in Iran was “low-keying it.”) Ten days ago, Trump was boasting about a “HISTORIC agreement” between Israel and Hamas that would be a “monumental step toward lasting PEACE and SECURITY.” Yesterday, Israeli Prime Minister Benjamin Netanyahu announced that he was rejecting the deal, refusing to begin withdrawing from Gaza until Hamas completely disarms. (The U.S. plan had envisioned both the Israeli withdrawal and the Hamas disarmament taking place in stages.)
I’ll say one thing for Trump, though: he doesn’t give up easily. In the last few days, Trump has sought rematches in several of his highest-profile legal losses of the second term. I’ve already written about one of them: Trump attempting to impose a new wave of tariffs to replace the ones struck down by the Supreme Court. Groups of states and small businesses have already filed lawsuits challenging these tariffs, which means we could see another fight over trade eventually bubble up to the high court.
This morning, I want to break down two other back-up plans Trump is trying to execute, picking new fights over birthright citizenship and Federal Reserve independence after his first attempts were squashed by the Supreme Court. How can Trump be trying again on these scores after being told “no” by the Supremes? Let’s dig in.
First, let’s start out by stipulating that this isn’t abnormal. Presidents frequently try to do something, get told “no” by the Supreme Court, and then try to do something similar in a different way. It’s what Joe Biden did on student loans. FDR did it repeatedly, trying to revise and refashion New Deal legislation that got struck down by the justices. When the Supreme Court rules on something, it generally doesn’t say, “you cannot attempt this policy” broadly, it says “you can’t do this in the specific way you went about doing it,” so it’s not surprising that presidents might try to find a different way.
This isn’t defying the court; in fact, it’s accepting the legitimacy of the court’s decisions, by working within the confines of the ruling the court laid out.1
With all that said, let’s start by looking at Trump’s latest actions with respect to the Fed:
Trump v. Cook, Round 2
Almost exactly a year ago, Trump purported to fire Lisa Cook, one of the seven members of the Federal Reserve Board of Governors, the influential body that helps set interest rates.
The Federal Reserve Act of 1913 says that Fed governors can only be fired “for cause,” though the statute does not elabroate on what that means; until Trump, no president ever tested it. In a letter to Cook last August, Trump alleged that she had purchased two properties in 2021 and described both as her primary residence when seeking mortgages.
Trump wrote Cook that there was “sufficient reason to believe you may have made false statements on one or more mortgage agreements,” and therefore there was “sufficient cause to remove you from your position.”
Importantly, in its 5-4 ruling in Cook’s favor earlier this summer, the Supreme Court did not weigh in on whether or not these allegations that Cook committed mortgage fraud before taking office (for which she was never formally charged or convicted) rose to the level of “cause” required by the 1913 statute.
Instead, the court ruled that it was moot because Trump had not followed the proper process when attempting to remove Cook. In his majority opinion, Chief Justice John Roberts quoted the Supreme Court’s 1901 ruling in Reagan v. United States, which said that officials who serve in positions where Congress fixed the term of office for a certain number of years — Fed governors serve 14-year terms — must receive “notice and hearing” before being removed.
This is not a requirement explicitly written into the statute (or explained much in either the 1901 or 2026 court rulings), so it still isn’t entirely clear what “notice and hearing” has to look like. According to University of Virginia law professor Aditya Bamzai, whose research was cited by Roberts, only two other presidents have ever tried to remove officials “for cause”: William Howard Taft and Richard Nixon.
Taft appointed a three-person “committee of inquiry” to investigate two members of the Board of General Appraisers he was considering firing: one who stood accused of using his position for personal gain, and another who was accused of lacking qualifications and abusing alcohol in a way that had “brought scandal upon the Board.” The committee held a public hearing and interviewed several witnesses, before recommending to Taft that he fire them both, which he did.
Nixon, on the other hand, fired the president of Fannie Mae, by sending him a letter saying, “You are hereby removed for good cause,” without offering much elaboration. He was given no hearing to plead his case.
In his opinion for the court, Roberts seemed to say that Trump needed to give Cook something in between the Taft and Nixon routes: a “full-blown judicial trial” was not necessary, Roberts wrote, but giving the official advance notice of the charges against them, and an opportunity to defend themselves (even just in writing), was.
And, no, Trump linking on Truth Social to a news article about the allegations against Cook a few days before announcing her firing did not count as “notice,” Roberts added. “That will not do,” the chief justice wrote. “At minimum, Cook was entitled to some explanation of the evidence at issue, some avenue for a response, and a deadline by which a response would be due.”
Last week, Trump responded by giving Cook exactly that. White House personnel chief Dan Scavino penned a three-page letter to Cook on Wednesday, spelling out the allegations of mortage fraud in detail. “Based on these facts,” he wrote, “a jury could find that you intended to defraud these institutions for your own benefit, but at a minimum, this conduct was grossly negligent and demonstrates that you are unfit for the office in which you serve as a controlling member of the Federal Reserve.” (Note that he said a jury “could” find her actions criminal, not that one “would.”)
Scavino then gave Cook an avenue to respond (by emailing the White House counsel) and a deadline by which to do so (August 26).
Now, we wait. Cook will either respond in the way that Scavino requested, or renew her lawsuit, or both. Either way, this is likely setting another Supreme Court clash into motion, forcing the justices to more explicitly say what “notice and hearing” has to look like and then — if they decide that the process Trump is now according Cook is sufficient — whether the allegations against Cook, properly processed, rise to the level of “cause.”
In his opinion, Roberts explicitly rejected the definitions of “cause” put forward both by Trump (who said the bar was met any time a president has concerns about a person’s “conduct, ability, fitness, or competence”) and Cook (who said that a president had to prove “inefficiency,” “neglect of duty,” “malfeasance,” or “ineligibility” for office).
He said that Trump’s definition of “cause” for firing a Fed governor was “too lenient” and Cook’s was “too stringent,” but declined to offer one of his own. Roberts did make clear that the bar, for him, would be high. It would have to be “substantial,” he said, in order to “reflect the Federal Reserve’s unique historical status and role.”
“Whether ‘cause’ for removal exists in any given situation will depend, at least in part, on the seriousness of the alleged misconduct, and the extent of any nexus that may exist to the Governor’s professional duties,” he added. “The key issue is whether ‘[t]he cause assigned’ truly ‘impl[ies] an unfitness for the place’—or whether it simply represents an effort to secure a ‘more congenial’ replacement.”
Scavino tried to establish such a nexus in his letter to Cook, writing that it was important that Fed governors “be above reproach, particularly in financial matters,” considering their role in the financial system.
Will that be good enough for Roberts and Justice Brett Kavanaugh, the other conservative who joined his Cook opinion? We are likely to get a bit more clarity in the coming months.
Trump v. Barbara, Round 2
If Roberts’ majority opinion in Cook was written as narrowly as possible, then his opinion in Trump v. Barbara — the birthright citizenship case — was written fairly broadly.
Faced with Trump’s Day One executive order attempting to end birthright citizenship for children of immigrants in the U.S. illegally or temporarily, Roberts could have punted on the meaning of the 14th Amendment’s Citizenship Clause and ruled simply that only Congress, not the president, can attempt to reinterpret it. (This was Justice Kavanaugh’s preferred path.) He could have struck the order down by saying that the children of illegal immigrants are U.S. citizens, while leaving vague how he would categorize children of temporary visitors or “birth tourists.” (This was the path that Justices Neil Gorsuch and Clarence Thomas, in their dissents, seemed open to.)
Instead, Roberts produced a fairly sweeping legal defense of the concept of jus soli (Latin for “right of the soil”), the idea that someone receives citizenship in the U.S. by being born on U.S. soil, not because of anything to do with their parents or ancestry.
While the dissenting justices wrote at length about the concept of being “domiciled,” arguing that the citizenship of a child was tied to whether their parents had made a permanent home in the United States, Roberts tied citizenship to the idea from British common law of the King owing his protection to anyone born within his territory, and these subjects owing him allegiance in return.
There were a few exceptions to this arrangement — children who the King was not expected to protect, or were not expected to be allegiant to the King — which gave way to the four exceptions to American birthright citizenship spelled out in United States v. Wong Kim Ark, the landmark 1898 Supreme Court case:
Children of “foreign sovereigns or their ministers” (meaning, children of foreign heads of state or ambassadors)
Children “born on foreign public ships”
Children of “enemies within and during a hostile occupation of part of our territory”
Children of “members of the Indian tribes owing direct allegiance to their several tribes”
Roberts kept these four exceptions in place.2 In a new executive order last week, Trump tried to broaden the first and the third exceptions, mandating that the federal government not recognize the citizenship of:
Children born in the United States to any foreign government employees (meaning, not just ambassadors, but anyone who works at a foreign embassy and isn’t a U.S. citizen)
Children of any member of a group or person listed by law as a Foreign Terrorist Organization or Specially Designated Global Terrorist
Trump also added two additional exceptions3:
Children whose parents engaged in a fraudulent “commercial transaction” to ensure that the mother is present in the U.S. to give birth (so-called “birth tourism”)
Children whose parents hire a surrogate mother in the U.S. for the same reason
Roberts’ opinion in Barbara does not explicitly speak to these specific situations, but it does seem to hint pretty heavily that the Chief Justice would not look kindly upon new exceptions to the birthright citizenship rule. As a philosophical matter, Roberts appears to dismiss the idea that the citizenship of a child should be tied to the circumstances of their parents, outside the narrow Wong Kim Ark exceptions.
Referring to the rule in the British common law, Roberts wrote: “A foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject. Why? Because the child owed an implied allegiance to the sovereign who protected him at his birth—no matter how ‘momentary and uncertain’ his presence in the King’s realms.”
He wrote that this was true even of children born to parents subject to expulsion, such as the Romani (then known as “gypsy”) people, whose parents were directed to avoid British territory but whose children were considered citizens when born inside the King’s realm.
In early U.S. history, Roberts adds: “The young Republic attracted tens of thousands of émigrés from the Old World—Scotch-Irish, French, German, Welsh, and many more, some of whom hoped to stay only a short time, others of whom hoped never to leave. No matter their intentions, however, they could be assured that their children would be American citizens by birth alone.”
The point is clear: A parent might be in the U.S. for a short amount of time. They might be here for one day. They might be here illegally. They might even be someone viewed with suspicion by the government. But their children would still be citizens, because citizenship is about where the child is born, not the status of the parents.
“Words appearing frequently in the Executive Order—‘mother,’ ‘father,’ ‘lawful,’ ‘temporary’ — are absent” from the 14th Amendment’s Citizenship Clause, Roberts writes. “For a simple reason: they did not matter.”
Trump’s executive order once again uses similar words, which is why it’s a good bet that Roberts will once again feel similarly. Perhaps Roberts will include foreign terrorists in the U.S. as “enemies within and during a hostile occupation of part of our territory,” and therefore block their children from citizenship, though I wouldn’t even count on that. From there, his agreeing to broaden “ministers” (ambassadors) to include, say, embassy custodial staff does not seem likely; nor did he seem particularly sympathetic to arguments about birth tourism in writing that the “intentions” of a parent do not matter for the citizenship of a child.
“Fraud” and “surrogacy” are two more words that are not found in the 14th Amendment, he would likely note.
Of course, in the U.S., interpreting laws is not merely an academic exercise. A plaintiff can only sue over something they are harmed by, which means Trump’s second executive order on birthright citizenship may survive longer than the first partially because there is a dramatically smaller pool of people who could potentially challenge it.
A foreign terrorist or birth tourist might be loath to announce themselves as such, in an attempt to protect the citizenship of their child — though that also speaks to the difficulty of enforcing this executive order in the first place. Foreign terrorists and birth tourists will also be similarly loath to announce themselves as such at a hospital, which means their children will likely continue receiving birth certificates just as they would have before this order.
If the order does return to the court, however, Roberts’ opinion (joined by Justice Amy Coney Barrett) pretty well tips his hand on how he would rule. (Justice Kavanaugh did not join the opinion, but wrote that changes to citizenship law would have to come from Congress, a test this order also does not pass.) Roberts’ opinion in Cook (joined by Kavanaugh) is a bit harder to parse — but only a bit. Like his ruling in Barbara, it offers clues about his broader philosophy (here, the premium he places on Fed independence) that suggest he would only allow a Fed firing over conduct that meets a substantially high bar.
I think this is important to stress because, early in Trump’s presidency, there was a lot of concern about Trump defying the Supreme Court — and a bunch of chest-thumping rhetoric from the administration suggesting that he might. But that never came to pass. Instead, with these latest actions from Trump, you see him doing the exact opposite: recognizing that he cannot color outside the lines the court sets for him, and trying to enact his will within the rules that they’ve laid out. That’s a big shift from the rhetoric of early 2025.
It should be noted that the 14th Amendment sets out a minimum for who has to be considered as U.S. citizens, but Congress can broaden it if they want. So, for example, the 4th exception listed is (currently, at least) moot, because Congress granted citizenship to Native Americans in 1924. In theory, at least, according to the Supreme Court’s holdings, Congress could undo this without runnig afoul of the 14th Amendment.
The order also purports to add an exception for children who are born in a U.S. territory “where citizenship is not conferred by law.” Currently, the only U.S. territory where this is the case is American Samoa — in other territories, like Puerto Rico for example, Congress has explicitly conferred citizenship by law. However, because the order says that it only affects people who are already not considered U.S. citizens, this one doesn’t really count as a change to existing law — unless Congress were to pass a new statute revoking citizenship in other U.S. territories, which Republican lawmakers have introduced.