Eliza Ward: Hey — so I've been staring at this story since yesterday and I keep doing the math on the calendar.
Brian Reed: The five weeks.
Eliza Ward: June 30, the Supreme Court strikes down Trump's birthright citizenship order — that's Trump v. Barbara, unanimous ruling — and then August 6, he signs two new ones. Five weeks.
Brian Reed: Unanimous. Not 6-3, not a close call — every justice.
Eliza Ward: Right, and — okay, so for anyone just catching up: birthright citizenship is the idea that if you're born on U.S. soil, you're a citizen. Full stop. It's baked into the 14th Amendment — 'all persons born in the United States, and subject to the jurisdiction thereof.' That's been the rule since 1868.
Brian Reed: So Trump is saying that phrase — 'subject to the jurisdiction thereof' — means something narrower. That it doesn't cover everyone born here.
Eliza Ward: That's the argument, yeah. The first order, EO 14160, signed January 20, 2025 — his first day back — tried to cut out children of undocumented immigrants and temporary visa holders. Courts blocked it immediately. Supreme Court killed it in June.
Brian Reed: And now the new orders are narrower — targeting 'alien enemies,' foreign terrorist org members, and then a separate one specifically for birth tourism. The part I don't get yet is whether 'narrower' is a legal distinction or just... better packaging for the same argument.
Eliza Ward: That's — actually, that's the thing I keep getting stuck on. Because 'narrower' implies the first one was constitutionally close. It wasn't. The wall they're hitting isn't last year's ruling. It's 1898.
Brian Reed: Wong Kim Ark.
Eliza Ward: United States v. Wong Kim Ark, 1898. Supreme Court said the 14th Amendment covers children born here even to non-citizen parents. That's been settled for a hundred and twenty-eight years. The 'new' orders are running into that, not into Trump v. Barbara.
Brian Reed: So — hang on — what does Wong Kim Ark actually carve out? Like, who is genuinely not covered? Because there must be something, or there'd be no argument at all.
Eliza Ward: Two categories. Children of foreign diplomats — they're not subject to U.S. jurisdiction, so they're excluded. And children of occupying enemy forces. That's it. That's the whole exception. Cecillia Wang argued in the April 2026 oral arguments in Trump v. Barbara that it's a — she called it a 'fixed bright-line' rule. Not flexible, not interpretable around the edges.
Brian Reed: Wait — so the administration's 'alien enemies' framing in the new order is basically trying to squeeze into that second carve-out? Like, dress up undocumented parents as occupying forces?
Eliza Ward: That's the read, yeah. And Cody Wofsy at the ACLU put it plainly after August 6 — he said, quote, 'the Supreme Court already decided this issue.' The ACLU's position is the narrowing is cosmetic. Same constitutional problem, different label.
Brian Reed: There's one thing I want to — let me see — some of the justices in Wong Kim Ark used the word 'domiciled.' Like, the parents need to be domiciled here. And the administration seems to be pulling on that thread. Is that real daylight or is that just wishful reading?
Eliza Ward: Mainstream constitutional scholars broadly reject it as a viable basis for executive action. It's in the opinion, the language is there — but the consensus is that it doesn't create a seam an executive order can fit through. So the 'domiciled' argument exists. Whether it survives is a different question, and the weight of scholarly opinion says no.
Brian Reed: But that's the circulating take I keep seeing — that birth tourism is different. Like, this isn't about undocumented parents, it's a targeted carve-out. Specific, small, defensible.
Eliza Ward: Right — and that take is doing a lot of work it hasn't earned. Because 'birth tourism' isn't a legally recognized category. It's a label. There's no statutory definition, no census count. Trump claimed 'hundreds of thousands' of births. That number is contested.
Brian Reed: Hang on — what if the numbers actually are small? Like, if it's genuinely a few thousand a year, doesn't the narrowness become real?
Eliza Ward: That's the thing — the 14th Amendment doesn't have a bad-faith travel exception. Doesn't matter if it's four hundred thousand or four thousand. The constitutional logic Cody Wofsy is applying at the ACLU applies regardless of population size.
Brian Reed: So 'narrow' is... I mean, it's narrower than EO 14160, sure. But narrower doesn't mean constitutional.
Eliza Ward: Stephen Miller framed the first new order as legally distinguishable. The administration calling something distinguishable doesn't — wait, that's not sufficient. The NAACP Legal Defense Fund already litigated the earlier order, called it unconstitutional, and won. They're not going to treat a new label as a new legal question.
Brian Reed: No, I don't buy that it survives on the birth tourism framing alone.
Eliza Ward: The honest answer — and this is where the take collapses — is that no court has actually weighed in on the August 6 orders yet. We don't know the scale, we don't have a ruling. What we have is the administration saying 'distinguishable' and the ACLU saying 'same problem, new wrapper.'
Brian Reed: And the part that makes this worse — what actually happens to a kid born during the litigation window — that's the thing we need to get into.
Eliza Ward: That limbo is the actual policy outcome — like, EO 14160 got enjoined before it touched a single family. But if these August 6 orders survive even a few weeks before injunctions land, you've got a September 2026 birth where nobody knows what to file.
Brian Reed: Walk that forward. Like — actually, let me see if I can make this concrete. Parents fall under the 'alien enemies' category the new order names. Baby's born. Hospital staff are looking at a birth certificate form and... what do they do?
Eliza Ward: They don't know. That's the answer. No Social Security number gets filed. School enrollment paperwork stalls at age five because the citizenship field is unresolved. The ACLU — Cody Wofsy specifically — has signaled immediate legal challenge, but 'immediate' still takes months.
Brian Reed: Years, potentially.
Eliza Ward: Right — and here's what I actually want to press on. EO 14160 never created that limbo because it was blocked before it took effect. These new orders, if any circuit treats the 'alien enemies' carve-out as even provisionally distinguishable — even one — the injunction might not be instant. That's a different litigation window than last time.
Brian Reed: So the narrowing isn't just political cover — it might actually buy time in a specific courtroom.
Eliza Ward: Maybe. That's — wait, I don't want to overstate that. We don't know yet. What to watch is whether the ACLU's challenge moves faster than 2025, and whether any circuit says 'this is sufficiently different from what the Supreme Court ruled in June.' That's the signal.
Brian Reed: And if the orders get blocked just as fast — same speed as EO 14160 — then the administration will have signed two rounds of orders that legally changed nothing. Which makes you ask whether the announcement was always the product.
Eliza Ward: The 14th Amendment hasn't moved. Wong Kim Ark hasn't moved. Forcing a second Supreme Court confrontation on narrower turf — that's either a genuine constitutional bet or it's the fight itself being the point. And right now we don't have enough to say which.
Brian Reed: The announcement being the product — I mean, that's what matters here. Because if the injunctions come in fast, and let's say no circuit treats 'alien enemies' as meaningfully different from what the Court already decided on June 30... then the 14th Amendment is exactly where it was. Unchanged. And two more orders exist that never touched a single birth certificate.
Eliza Ward: That's — wait, that frames it perfectly. The Constitution wasn't amended. Wong Kim Ark is still standing. Trump v. Barbara is unanimous on the books. What did August 6 do?
Brian Reed: And neither of us can answer that yet.
Eliza Ward: No. The signal to watch is whether any court gives the 'alien enemies' framing even provisional daylight before enjoining — that's the one thing that would actually change the shape of this. Until then it's two orders, one unchanged constitutional text, and a pretty open question about what the point was.
