Efforts to End Birthright Citizenship: Order, Courts, Congress

Efforts to end birthright citizenship in the United States are moving on two tracks: an executive order President Donald Trump signed on January 20, 2025, and companion bills introduced in both chambers of Congress. Neither has taken effect. Four federal district judges blocked the executive order within weeks of its signing, the Ninth Circuit upheld a nationwide block in July 2025, and the Supreme Court heard oral arguments in Trump v. Barbara on April 1, 2026. A ruling is expected by late June or early July 2026.¹

What Executive Order 14160 Would Do

The order, titled “Protecting the Meaning and Value of American Citizenship,” targets children born in the United States after February 19, 2025 in two situations. In both, the father must not be a U.S. citizen or lawful permanent resident. The first category covers children whose mothers were unlawfully present at the time of birth. The second covers children whose mothers were lawfully but temporarily present, a category that reaches student, work, and tourist visa holders as well as people admitted under the Visa Waiver Program.²

The order directs federal agencies to stop issuing documents recognizing U.S. citizenship for these individuals and to refuse to accept state or local documents that do so. The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security were each told to align their agencies’ regulations with the new policy.²

A U.S. Citizenship and Immigration Services implementation plan later showed how broadly the administration read “lawful but temporary.” The definition included parolees, recipients of Temporary Protected Status, holders of T and U visas for trafficking and crime victims, individuals granted withholding of removal or deferred action, and citizens of the Federated States of Micronesia, the Marshall Islands, and Palau under their Compacts of Free Association.³

The Constitutional Rule the Order Runs Into

The Citizenship Clause of the Fourteenth Amendment, ratified July 9, 1868, reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”⁴

The Supreme Court’s controlling interpretation is United States v. Wong Kim Ark (1898). In a 6-2 decision, the Court held that a child born in San Francisco to Chinese parents who were themselves ineligible for naturalization was a U.S. citizen. Justice Horace Gray wrote that the amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.”⁵ The recognized exceptions have been narrow: children of foreign diplomats, children born during a hostile military occupation, and, historically, certain Native Americans subject to tribal authority.⁶

Birthright citizenship is also codified by statute in the Immigration and Nationality Act of 1952 at 8 U.S.C. § 1401, which does not condition citizenship on parental status.⁷

The Administration’s Legal Theory

The administration’s argument turns on the phrase “subject to the jurisdiction thereof.” Solicitor General D. John Sauer has argued that the phrase requires “direct and immediate allegiance” to the United States, established through lawful domicile, meaning a permanent legal home in the country. Under this reading, children born to parents in the country illegally or on temporary visas are not “completely subject” to U.S. political jurisdiction because their parents owe primary allegiance to a foreign country.⁸

Sauer has framed the executive order as “restor[ing] the original meaning” of the Citizenship Clause, arguing it was intended only to overrule the 1857 Dred Scott decision and secure citizenship for formerly enslaved people. The administration cites The Slaughter-House Cases (1873) and Elk v. Wilkins (1884) for the proposition that the amendment had “one pervading purpose” so limited. On Wong Kim Ark, Sauer has argued the case should be read as applying only to children of aliens who were “domiciled” in the United States and “permitted” to reside here, rather than as a broad rule.⁹

Opponents read the text and history differently. Challengers argue that “subject to the jurisdiction thereof” means being born on American soil under the authority of American law, with only the traditional diplomatic and hostile-occupation exceptions.⁷ During the 1866 debates, Senator Jacob Howard, who drafted the Citizenship Clause, described it as “declaratory of… the law of the land already,” and Senator John Conness said it applied to children of “all parentage.”¹⁰ Professor Gerald Neuman of Harvard Law School has called the administration’s reading “doubly unlawful,” arguing the president has “no authority to change citizenship rules at all.”¹¹

How the Courts Have Responded

The order faced immediate legal opposition. Twenty-two states and the District of Columbia filed suit, with Washington Attorney General Nick Brown and a coalition of attorneys general leading separate filings.¹² The ACLU, the NAACP Legal Defense Fund, the Asian Law Caucus, and other organizations sued on behalf of immigrant communities and expectant parents.¹³

Four federal judges blocked the order in February 2025. Judge Deborah Boardman of Maryland issued a preliminary injunction on February 5 in CASA, Inc. v. Trump. Judge John Coughenour of the Western District of Washington issued an injunction on February 6 in Washington v. Trump, calling the order “blatantly unconstitutional.” Judge Joseph Laplante of New Hampshire issued a more limited injunction on February 10 protecting members of specific plaintiff organizations. Judge Leo Sorokin of Massachusetts issued a universal injunction on February 13 in Doe v. Trump. Three of the four injunctions were universal, barring enforcement against anyone in the country rather than only the named plaintiffs.¹⁴

Trump v. CASA and the Scope of Injunctions

The administration appealed, and when the circuit courts declined to stay the injunctions, the government asked the Supreme Court for relief. On June 27, 2025, the Court ruled 6-3 in Trump v. CASA, Inc., but on the scope of the injunctions rather than the constitutionality of the order.

Justice Amy Coney Barrett, writing for the majority joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, held that universal injunctions “likely exceed the equitable authority that Congress has given to federal courts.” The injunctions were stayed “only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”¹⁵ Justice Sotomayor dissented, joined by Justices Kagan and Jackson, and Justice Jackson filed a separate dissent.¹⁶ The Court did not decide whether the executive order itself was constitutional.

The Ninth Circuit and Class Certification

Following that ruling, the litigation moved on two parallel tracks. On July 23, 2025, a three-judge Ninth Circuit panel voted 2-1 to maintain a nationwide block on the order. Judges Ronald Gould and Michael Hawkins concluded that the district court “correctly concluded that the Executive Order’s proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional.” The majority held that a nationwide injunction was needed to give the plaintiff states “complete relief,” because a geographically limited order would still force those states to overhaul eligibility-verification systems for benefits like Medicaid and the Children’s Health Insurance Program. Judge Patrick Bumatay dissented on standing grounds, arguing the states’ claimed financial injuries were too speculative; he did not reach the underlying constitutional question.¹⁷¹⁸

In New Hampshire, Judge Laplante took a different route. On July 10, 2025, he certified a nationwide class of all children born on or after February 20, 2025 who would be denied citizenship under the order, and issued a class-based preliminary injunction. A class injunction is procedurally distinct from the universal injunctions the Supreme Court criticized in CASA. Judge Laplante found the plaintiffs had shown a “strong likelihood of success on the merits,” that the order “flouts the plain language of the Fourteenth Amendment,” and that it conflicts with Wong Kim Ark and the country’s “250-year history of citizenship by birth.”¹⁹

Trump v. Barbara at the Supreme Court

The Supreme Court granted certiorari before judgment in Trump v. Barbara on December 5, 2025, agreeing to decide the core constitutional question directly rather than waiting for further appellate proceedings.²⁰

Oral arguments were held on April 1, 2026 and ran just over two hours. President Trump attended part of the morning session, the first time a sitting president has attended Supreme Court oral arguments.¹ Sauer argued the administration’s domicile-based theory. ACLU National Legal Director Cecillia Wang argued for the challengers.²¹

Several justices pressed Sauer on his position. Justice Kagan questioned the textual basis for reading “jurisdiction” as “allegiance and domicile,” suggesting the theory relied on “obscure” sources rather than the plain meaning of the word. Justice Jackson said the administration’s approach would allow Congress to control who counts as “domiciled” and therefore who is a citizen, the kind of political discretion the Fourteenth Amendment was written to prevent. Justice Gorsuch questioned whether domicile should be judged by 1868 or modern legal standards and expressed skepticism about conditioning a child’s citizenship on the intent of their parents.²²

Analysis of the argument suggests a likely 6-3 or 7-2 outcome in favor of the challengers, with Justices Thomas and Alito the most probable dissenters and Justice Barrett a potential swing vote.²¹ A decision is expected by late June or early July 2026.

The Congressional Track

Members of Congress have introduced legislation to restrict birthright citizenship alongside the executive action. In the Senate, Lindsey Graham (R-SC), Ted Cruz (R-TX), and Katie Britt (R-AL) introduced the Birthright Citizenship Act of 2025 on January 29, 2025. The bill would grant automatic citizenship only to children born to at least one parent who is a U.S. citizen or national, a lawful permanent resident, or an alien serving in the U.S. armed forces.²³ Representative Brian Babin (R-TX) introduced a companion bill, H.R. 569, on January 21, 2025 with 34 co-sponsors; it was referred to the House Judiciary Committee.²⁴

Neither bill has advanced beyond introduction. Opponents note that even if such legislation passed, it would face the same constitutional challenge as the executive order: the Fourteenth Amendment sets a floor for citizenship that Congress cannot lower without a constitutional amendment. Amending the Constitution requires two-thirds of both chambers of Congress and ratification by three-quarters of the states.

Who Would Be Affected

According to the Migration Policy Institute, an average of 255,000 children born on U.S. soil each year would be denied citizenship under the policy. By 2045, the cumulative number of affected births would reach 4.8 million; by 2075, 12.8 million. The institute projected that the change would increase the total unauthorized population in the United States by 2.7 million by 2045 and 5.4 million by 2075, as affected children would inherit their parents’ unauthorized status.²⁵

Without citizenship, affected individuals would be unable to work legally, vote, obtain U.S. passports, or access many federal benefits. They could be deported to countries where they have never lived. Some could become stateless if their parents’ home nations do not automatically extend citizenship to children born abroad.¹⁰

For now, none of these consequences apply. The executive order has never been enforced. Every court to reach the merits has ruled against it. What remains is the Supreme Court’s decision, expected before the current term ends.

1
SCOTUSblog. Supreme Court Appears Likely to Side Against Trump on Birthright Citizenship
2
The White House. Protecting the Meaning and Value of American Citizenship
3
U.S. Citizenship and Immigration Services. Implementation Plan of Executive Order 14160
4
National Archives. 14th Amendment to the U.S. Constitution
5
SCOTUSblog. A History of Birthright Citizenship at the Supreme Court
6
Congress.gov. Fourteenth Amendment, Section 1 – Citizenship Clause
7
SCOTUSblog. Birthright Citizenship: Hard Questions and the Best Answers for Trump’s Challengers
8
SCOTUSblog. The Key Arguments in the Birthright Citizenship Case
9
U.S. Supreme Court. Petitioner’s Reply Brief, Trump v. Barbara
10
Brennan Center for Justice. Birthright Citizenship Under the U.S. Constitution
11
Harvard Law School. Can Birthright Citizenship Be Changed?
12
Office of the Attorney General of California. State of New Jersey, et al. v. Donald J. Trump, Complaint
13
ACLU. Immigrants’ Rights Advocates Sue Trump Administration Over Birthright Citizenship Executive Order
14
SCOTUSblog. Where Does Birthright Citizenship Order Currently Stand?
15
U.S. Supreme Court. Trump v. CASA, Inc.
16
SCOTUSblog. Trump v. CASA, Inc.
17
Washington State Standard. Appeals Court Maintains Washington’s Nationwide Block of Birthright Citizenship Order
18
OPB. Birthright Citizenship Trump
19
Civil Rights Litigation Clearinghouse. Barbara v. Trump
20
SCOTUSblog. Trump v. Barbara
21
SCOTUSblog. What Oral Argument Told Us in the Birthright Citizenship Case
22
U.S. Supreme Court. Oral Argument Transcript, Trump v. Barbara
23
Senator Lindsey Graham. Graham, Cruz, and Britt Introduce Bill to Restrict Birthright Citizenship
24
GovInfo. H.R. 569, Birthright Citizenship Act of 2025
25
Migration Policy Institute. Birthright Citizenship Repeal Projections