United States: U.S. Supreme Court to Review Birthright Citizenship EO
December 5, 2025
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At a glance
- The U.S. Supreme Court has agreed to review and rule on the legality of President Trump’s January 20 Birthright Citizenship Executive Order (EO), which would significantly restrict birthright citizenship in the United States.
- The government is currently enjoined from implementing the EO pursuant to several lower court orders and the EO will remain barred from implementation unless and until the Supreme Court issues a contrary decision.
- A Supreme Court ruling may not come until summer of 2026.
The issue
The U.S. Supreme Court has granted the White House’s request to review and rule on the legality of President Trump’s January 20 Birthright Citizenship Executive Order (EO). The EO would deny U.S. citizenship to children born in the United States to a mother in temporary lawful status or without status, if the child’s father is not a U.S. citizen or U.S. lawful permanent resident.
The federal government is currently enjoined from implementing the birthright citizenship EO pursuant to four separate lower court orders. The White House is seeking a Supreme Court ruling that the EO is constitutional in its reinterpretation of the 14th Amendment Citizenship clause, thereby overruling the lower court injunctions.
A final ruling on the EO’s constitutionality may not be issued until the end of the Supreme Court’s current term in June or July 2026. The case is Trump, et al. v Barbara, et al. (25-365).
Background
On January 20, President Trump issued a birthright citizenship EO stating that the following classes of children born in the United States after February 19, 2025 would no longer be U.S. citizens at birth:
- Children whose mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of the child’s birth; and
- Children whose mother’s presence in the United States at the time of the child’s birth was lawful but temporary, and the father was not a United States citizen or lawful permanent resident at the time of the child’s birth.
The EO defines mother as the “immediate female biological progenitor” and father as the “immediate male biological progenitor.” (Therefore, parents with legal but not biological parentage of a child could not serve as the basis for their child’s U.S. birthright citizenship claim.)
The basis of the EO is a significant reinterpretation of the phrase “subject to the jurisdiction thereof” in the 14th Amendment Citizenship clause, which for more than 125 years has been interpreted to grant citizenship based on birth in the United States, subject to some very narrow exceptions.
Thus far, various nationwide injunctions have prevented implementation of the birthright citizenship EO, even after a June 27 Supreme Court decision seemed to limit the authority of federal courts to issue nationwide (or “universal,” in the court’s terminology) injunctions. Despite the various injunctions in effect, in late July 2025, U.S. Citizenship and Immigration Services (USCIS) issued preliminary guidance on certain aspects of EO implementation, providing insight into how the agency would apply the new citizenship framework if all injunctions were to be lifted. If the Supreme Court were to deem the EO constitutional and the EO were to take effect, significant changes would be required in the policies and operations of both USCIS and the U.S. State Department.
What's next
Supreme Court oral arguments in the birthright citizenship litigation are likely to take place during the first half of 2026, and the Court could issue a final decision towards the end of the Supreme Court term in June or July 2026. As long as any lower court ruling against the EO with nationwide effect remains in place, the birthright citizenship EO cannot be implemented.
Fragomen is closely monitoring the birthright citizenship EO litigation and will continue to provide updates.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
