Trump's Birthright Order - Flawed Even If Upheld; Split Decision?

WASHINGTON - April 1, 2026 - PRLog -- Although questioning this morning suggests that President Trump's order seeking to limit birthright citizenship is in trouble, it still would have a major flaw even if the order is upheld in its entirety, notes public interest law professor John Banzhaf.

However, the questioning suggests that the justices might still issue a split decision - upholding birthright citizenship if the mother was lawfully in the U.S. at the time of birth, but denying it if she entered illegally so that she was arguably not subject in practical effect to U.S. jurisdiction.

President Trump's January 2025 Executive Order 1416 directed federal agencies not to issue or recognize U.S. citizenship documents for children born in the U.S. after February 19, 2025 if:
ONE - The child's mother was unlawfully present at the time of birth AND if the father was not a U.S. citizen or lawful permanent resident (LPR),
OR
TWO - The child's mother's presence was lawful but temporary (e.g., on a student, work, tourist, or visa-waiver visa) AND if the father was not a U.S. citizen or LPR.

So, even if the order was upheld in its entirety, it would still permit the mother to claim that the father was a U.S. citizen or LPR so as to entitle her child to receive citizenship by birth.

She could of course claim that she had had sexual intercourse at the relevant time with a man she knew to be a citizen of the U.S. or LPR, but did not know his name and/or current whereabouts; indeed, he might even be a resident of a foreign country, dead or missing at the time of birth, etc.

Alternatively, she could claim to have had sexual intercourse at the relevant time with several men; at least one of whom would make the child a citizen by birth, even if Trump's order remains in effect.

Professor Banzhaf, who has won several Supreme Court cases, also notes that some justices suggested that distinctions might be drawn between women who were lawfully but temporarily in the U.S. at the time of birth, and those who were here illegally and whose presence and whereabouts might be unknown to any government agency.

Banzhaf's legal analysis, which a majority might still adopt, suggests that this distinction would permit withholding birthright citizenship to children born after the effective date if the mother was an illegal alien, but not if she was here legally (e.g., on a student, work, tourist, or visa-waiver visa) at the time.
A Possible Compromise in the Birthright Citizenship Case (http://prsync.com/george-washington-university/a-possible...)
Children Become Citizens Only If Mother Was in the U.S. Lawfully (http://prsync.com/george-washington-university/a-possible-compromise-in-the-birthright-citizenship-case----children-become-citizens-only-if-mother-was-in-the-us-lawfully-5180031/)

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