United States: White House Seeks Supreme Court Review of Birthright Citizenship EO Constitutionality

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.)

Thus far, various nationwide injunctions have prevented implementation of the EO, even after a June 27 Supreme Court decision limiting the authority of federal courts to issue nationwide (or “universal,” in the court’s terminology) injunctions. In its June 27 decision, the Supreme Court directed courts to issue injunctions only to the extent necessary to provide complete relief to plaintiffs; in response, two district courts affirmed their prior nationwide injunctions, finding that nationwide relief was in fact necessary to provide complete relief to plaintiffs. One of those cases is the instant State of Washington case, where the district court’s second nationwide injunction was then subsequently affirmed by the Ninth Circuit Court of Appeals in July.

In addition, after the June 27 Supreme Court decision, plaintiffs in the instant Barbara case, as well as in a separate Maryland district court case, sought class action preliminary injunctive relief, class action lawsuits being a legal remedy seemingly left open by the June 27 Supreme Court decision. In both cases, class certifications were issued and class-wide injunctions granted by the district courts.

Despite the various injunctions in effect, in late July, 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 EO were to take effect, significant changes would be required in the policies and operations of both USCIS and the U.S. State Department.

As long as any nationwide legal remedy remains in place, the birthright citizenship EO cannot be implemented. If the Supreme Court agrees to review the constitutionality of the EO, it is likely that oral arguments would take place during the first half of 2026, and that the Court would issue a final decision in the case towards the end of the Supreme Court term in June or July 2026.