United States: District Court Issues Preliminary Injunction Against Latest Executive Order on Birthright Citizenship

On August 6, 2026, President Trump signed two Executive Orders concerning citizenship for individuals born in the United States. One order set forth what the Administration views as exceptions to birthright citizenship. A second order directed the Departments of Homeland Security and State to take action to curb so-called birth tourism.

The Executive Orders came weeks after the U.S. Supreme Court struck down a January 2025 presidential order that sought to limit birthright citizenship in a case called Trump v. Barbara. In that case, the Court ruled that children born in the United States – even to parents who are in the country unlawfully or temporarily – are U.S. citizens at birth under the U.S. Constitution, with a narrow exception for children born to certain foreign diplomats. The decision upheld the U.S. birthright citizenship framework that has been in place for more than 125 years. 

President Trump’s August 6 birthright citizenship EO identifies certain categories of children born in the United States to foreign national parents whom the government should deem not entitled to birthright citizenship, based on the Trump Administration’s interpretation of historical exceptions to birthright citizenship discussed in Trump v. Barbara.

Under the EO, the following categories of individuals would not be considered U.S. citizens based on birth in the United States if neither of their parents is a U.S. citizen and if:

• either parent engages in a commercial transaction to ensure that the person’s mother is present in the United States to give birth;
• either parent engages in a commercial transaction with a surrogate present in the United States to give birth;
• either parent engaged in any commercial transaction to purchase or access birthright citizenship for the individual, or engaged in fraudulent activity to obtain citizenship;
• either parent is an “alien enemy,” which the EO defines to include members of designated foreign terrorist organizations and specially designated global terrorists; or
• either parent is a foreign government employee, including foreign diplomats, other employees of foreign embassies or consulates, other foreign government employees, and employees of international organizations having international-organization immunity.

The EO further states that this is a non-exhaustive list of individuals not entitled to birthright citizenship.

The EO prohibits federal government agencies from documenting these individuals as U.S. citizens, or from accepting documents issued by state or local governments purporting to recognize U.S. citizenship for these individuals. The Order also requires executive agencies to issue guidance implementing the order within 30 days. The district court’s September 2 preliminary injunction does not bar federal agencies from issuing guidance under the Order.

The list of individuals identified as not entitled to birthright citizenship under this EO extends well beyond the long-recognized narrow exceptions to birthright citizenship. In particular:

• As noted above, under longstanding interpretations and practice, only children of certain foreign diplomats having diplomatic immunity do not acquire citizenship by birth in the United States. Children of other foreign government officials have historically been considered U.S. citizens if born in the United States.
• The exception from birthright citizenship for children of “alien enemies” referred to in early case law has generally been considered to cover instances where part of the territory of the United States is occupied by a foreign invading army and the child is born in that occupied territory, rather than referring to designated terrorists, members of terrorist organizations, or other foreign nationals designated or deemed to be enemies.
• No exception to birthright citizenship has previously been recognized for children born as a result of birth tourism, surrogacy, or illegal activity. 

As a result of the district court decision, the federal government is temporarily barred from denying U.S. citizenship under the August 2026 EO, while litigation challenging the Order’s legality continues. The government is likely to appeal the district court decision. Thus far, there has been no implementation of the Order. Fragomen is closely tracking government action and litigation related to the EO and will provide further updates.