A former federal prosecutor has sharply criticized President Donald Trump's latest executive order aiming to limit birthright citizenship, calling the legal reasoning behind it a "fever dream" that is destined to fail at the Supreme Court.

Harry Litman, writing on his Substack newsletter "Talking Feds," argued that the new executive order — which creates new exceptions to birthright citizenship and places restrictions on so-called "birth tourism" — represents another iteration of what he described as Trump's "favorite play": taking a loss and framing it as a win. According to Litman, the move reveals that the president has not grasped how decisively the Supreme Court rejected his previous attempt to end birthright citizenship.

The 14th Amendment's Citizenship Clause, ratified in 1868, states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The Supreme Court has interpreted this language to guarantee automatic citizenship to virtually all children born on U.S. soil for over a century, most notably in the 1898 decision United States v. Wong Kim Ark. Successive administrations, Republican and Democratic alike, have treated broad birthright citizenship as settled constitutional law.

"It's a fever dream," Litman wrote. "The chief order directly conflicts with Barbara, and it is destined to fail the first time the administration tries to use it. The second is subtler, and its fate will depend on how it's administered."

Litman was referencing the case Trump v. Barbara, in which the Supreme Court ruled that Trump's earlier executive order ending birthright citizenship violated the 14th Amendment. Following that ruling, Trump publicly accused the Supreme Court of costing the country "trillions" of dollars.

Litman also took aim at claims made by senior Trump officials. He pointed to Deputy Chief of Staff Stephen Miller's assertion that the 14th Amendment was written solely to guarantee citizenship for the children of slaves — a characterization Litman described as "astonishingly brazen" and one that the Supreme Court has explicitly rejected. While the amendment's framers were indeed motivated by the need to secure citizenship for formerly enslaved people in the aftermath of the Civil War and the Dred Scott decision, the text they adopted sweeps more broadly, and the Court has repeatedly declined to narrow it to that single purpose.

Litman further noted that Will Scharf, the new White House counsel, stated that nothing in the new executive order "runs afoul of any of the Supreme Court's opinions." Litman called it "stunning that the Trump administration would claim with a straight face."

The full analysis is available on Litman's Substack.