CNN legal expert Elie Honig on Thursday signaled where President Donald Trump's new executive order on birthright citizenship could end up.
The former U.S. District Attorney for the Southern District of New York spoke on a panel with CNN anchor Kasie Hunt, describing how Trump lost his birthright citizenship case in June when the Supreme Court voted to uphold the law and reject the president's executive order. The next steps, Honig explained, could be tied to trying to broaden the two exemptions included in the current law.
"First of all, the children of foreign diplomats," Honig said. "And you just heard Stephen Miller say that they're going to try to expand the definition of who counts as a foreign diplomat. And the second long-recognized exception has been for the children of invading armies. Now, fortunately, we've never actually had to deal with that. But I think that's really where the rubber is going to hit the road. It sounds like what the president is going to do is expand that definition of what constitutes an invading army."
Honig suggested Trump's maneuver might end up before the high court.
"We've seen him do this in the immigration context and try to say that the presence of certain populations here, they're actually invading armies," Honig added. "And so one thing we know for sure, this will be challenged in the courts. And Trump's first attempt to redefine birthright citizenship failed. This is a narrower attempt, but still fairly aggressive, and wouldn't surprise me at all if it ends up in the Supreme Court again."
Leah Wright Rigueur, Associate Professor of History at Johns Hopkins University, argued that Trump could use the "children of invading armies" exemption as having the most "wiggle room."
"I think one of the things is that the Supreme Court has been very consistent about saying, 'This is what's in the Constitution. This is what the law is. And you cannot create your own definitions or offer your own interpretations. This is how we see the law,'" Wright Rigueur said. "So I think that this is something that's going to end up in front of the courts, multiple layers of the courts, that is going to be protested."
CNN commentator Xochitl Hinojosa called it "problematic."
"You are targeting a certain population because of the color of their skin," Hinojosa said. "And now we're potentially also targeting pregnant women because of the color of their skin, which is just horrifying. All of this goes back to the fact that Donald Trump, instead of taking a victory lap on securing the border, is pushing the limits on immigration, whether it be ICE shootings across the country now, whether it is birthright citizenship; this is clearly unconstitutional. It will be challenged. But now he's targeting more than just violent criminals."