Federal prosecutors are now being directed to target a practice the Supreme Court just protected
The Supreme Court handed the Trump administration a significant loss this week, and the Justice Department wasted no time responding. Hours after the high court struck down Trump’s executive order targeting birthright citizenship, the DOJ directed federal prosecutors to shift their focus toward what the administration calls “birth tourism,” a practice where foreign nationals travel to the U.S. specifically to give birth and secure citizenship for their child.
What the Supreme Court actually ruled
The court ruled 6-3 to block Trump’s executive order, which sought to end automatic citizenship for children born on U.S. soil if neither parent holds American citizenship or legal permanent residency. The ruling upheld a constitutional principle that has stood for over a century, affirming that nearly all children born in the United States are citizens by birth. It was a direct rebuke of one of Trump’s most aggressive immigration policy pushes.
The DOJ’s response to the citizenship ruling
Rather than accepting the loss quietly, the Trump administration pivoted fast. Colin McDonald, a senior DOJ official serving as assistant attorney general for fraud enforcement, circulated a memo to all department employees directing prosecutors to treat birth tourism investigations as a top priority. McDonald outlined that foreign nationals who enter the country under false pretenses to give birth could face charges under several existing federal statutes, including visa fraud, money laundering, identity theft, and wire fraud.
The memo also directed federal prosecutors to coordinate directly with the Department of Homeland Security on these cases. DHS had already launched what it called a “Birth Tourism Initiative” back in April, signaling that the administration had been laying groundwork for this move well before the Supreme Court ruling landed.
What birth tourism actually means
The term refers to a practice where pregnant foreign nationals travel to the United States without longstanding ties to the country, with the primary purpose of giving birth here so their child automatically receives U.S. citizenship. The Trump administration has used the issue repeatedly to argue that birthright citizenship creates an incentive for immigration abuse. Conservative Justice Clarence Thomas raised the issue again in his dissenting opinion on Tuesday’s ruling.
McDonald acknowledged in the memo that past prosecutions in this space focused almost entirely on visa fraud, but made clear that prosecutors now have broader legal tools available and are expected to use them.
What this means going forward
For Black and immigrant communities that have long felt the weight of selective enforcement in the justice system, this directive raises familiar concerns. The administration lost its constitutional argument at the Supreme Court but is now channeling that same immigration hardline approach through the criminal justice system. Coordinating federal prosecutors with DHS on birth tourism cases expands the government’s reach into a space the courts just ruled belongs to individuals by constitutional right.
The broader question is whether this pivot represents a genuine crackdown on documented fraud, or a political maneuver designed to keep immigration pressure alive despite a courtroom defeat. The DOJ has not released any data on the current scale of birth tourism prosecutions or how many active investigations exist.