'Impeach Everyone Who Is Responsible': Expert Says Trump Order Outright Defies Supreme Court

An immigration expert has called for the impeachment of officials behind a new Trump administration rule that says certain US-born children of foreign government employees are not US citizens, arguing the measure defies the Supreme Court.

David J. Bier, director of immigration studies at the Cato Institute, reacted on X after the rule was filed, writing: 'Impeach everyone who is responsible for this defiance of the Supreme Court.'

The interim final rule, issued by the Department of Homeland Security and signed by Secretary Markwayne Mullin, says that a child born in the United States to a qualifying foreign government employee is not subject to US jurisdiction for birthright citizenship purposes unless at least one parent is a US citizen. It states that such a child is not a US citizen under the Fourteenth Amendment.

The rule was filed for public inspection and took effect on 4 September. It is scheduled for publication in the Federal Register on 9 September and applies to children born on or after 4 September.

The Rule's Scope

The rule expands the existing regulatory exception beyond the children of foreign diplomats. It covers nationals employed by a foreign embassy or consulate, people employed by a foreign government in an official capacity, and employees of international organisations with possessing international-organization immunity.

It excludes personal employees such as chauffeurs and housekeepers hired by individual officials, third-country nationals working for foreign missions, certain contractors and some employees of state-owned enterprises.

The rule also creates a voluntary route for affected children to register as lawful permanent residents. USCIS says Form I-485 costs $1,440 for paper applications or $1,390 online, while DHS estimates total costs of about $1,994 and $1,906 respectively.

DHS says it has not historically tracked this population as a separate category and therefore cannot determine how many children would be affected. It cites State Department data showing more than 124,000 foreign mission members and dependents in the US, but says that figure cannot be used to calculate the affected population.

The agency issued the rule without the usual advance notice-and-comment process, invoking the foreign-affairs and good-cause exceptions, while opening a 30-day period for comments.

'Either You're Subject To US Jurisdiction Or You're Not'

Bier challenged the administration's reasoning on jurisdiction.

'HA! Sorry. That's not a thing,' Bier wrote. 'Either you're subject to US jurisdiction or you're not.'

'You don't get to say "subject to all US laws, except for birthright citizenship, so we can still prosecute you for crimes",' he added.

The administration's rule relies on the longstanding diplomatic exception and cites the Supreme Court's 1898 decision in United States v. Wong Kim Ark, the landmark birthright-citizenship case. The rule argues that certain children of foreign-government employees are not subject to US jurisdiction for birthright-citizenship purposes.

Bier disputes that interpretation, arguing that the broader category of foreign-government employees does not share the diplomatic immunity enjoyed by accredited diplomats.

'Ambassadors are not subject to US jurisdiction because they have immunity,' he wrote. He later called for the impeachment of everyone responsible for what he described as 'this defiance of the Supreme Court'.

Supreme Court Ruling

The dispute comes days after a federal judge blocked enforcement of President Donald Trump's 6 August executive order on birthright citizenship against a certified class of children.

On 30 June, the Supreme Court ruled in Trump v. Barbara that children born in the United States to parents who are unlawfully or temporarily present are subject to US jurisdiction and are citizens at birth under the Fourteenth Amendment. The ruling rejected Trump's attempt to deny citizenship to those children.

Trump's 6 August order took a narrower approach and included provisions concerning children of foreign government employees. US District Judge Deborah Boardman's 2 September injunction, however, applies to the certified class in the lawsuit rather than every person covered by the executive order.

That distinction matters. Boardman did not rule specifically on the validity of the new DHS regulation, which is a separate administrative action.

The new rule itself acknowledges the injunction and says DHS will not apply it in a way that conflicts with the court's order for members of the certified class unless the government obtains relief.

The legal question now shifts to whether the administration can extend the narrow diplomatic exception to a broader category of foreign government employees who may not have the same immunity as accredited diplomats. That issue could face a separate court challenge now that the rule has taken effect.