A great deal has happened on the subject of birthright citizenship under President Trump, including an Executive Order redefining parts of the long-standing meaning of birthright citizenship. As courts around the country issue injunctions on federal action while weighing lawsuits on the constitutionality of the President’s order, it is an appropriate time to recap the history of birthright citizenship.
Birthright citizenship (jus soli) is a right of citizenship to anyone who is born within the territory of a country. The right to citizenship by birth within the country regardless of the nationality or immigration status of the parents is a concept unique to the Americas — call it a form of hemispheric exceptionalism. In the context of the United States, the 14th Amendment of the U.S. Constitution (adopted 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 Amendment confers birthright citizenship on two conditions: (1) that the person be born within the United States, and (2) that the person must be subject to U.S. jurisdiction.
The first U.S. Supreme Court case to determine the citizenship status of a child born to parents who were not U.S. citizens was United States v. Wong Kim Ark, 169 U.S. 649 (1898). The Court ruled that any child born in the United States to non-U.S. citizen parents was automatically a citizen at birth. The Court also addressed the clause “subject to the jurisdiction thereof” to only exclude from birthright citizenship children born in the United States to foreign diplomats, hostile military occupiers, and, at the time, American Indians, which were the classes of people traditionally excluded from birthright citizenship in the United States under the common law. It was also the practice of the U.S. government to exclude from birthright citizenship children born on U.S. territories.
The restriction of birthright citizenship on American Indians was abolished by an act of Congress in 1924, and people born on U.S. territories were conferred U.S. citizenship and subsequent birthright citizenship by acts of Congress between 1917 and 1986. Since Wong Kim Ark, and the subsequent acts of Congress, the U.S. federal government has recognized citizenship to every child born in the U.S. states, District of Columbia and the territories (with the exception of American Samoa) regardless of the nationality, and, crucially, the immigration status of their parents.
President Trump’s Executive Order on Birthright Citizenship
Then, on Jan. 20, 2025, President Donald Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” In the Order, President Trump declared a child born in the following scenarios is not “subject to the jurisdiction thereof” of the United States:
- A child born to a mother who has no lawful immigration status in the United States and the father is not a U.S. citizen or lawful permanent resident at the time of the birth.
- A child born to a mother who has a lawful, but temporary immigration status in the United States and the father is not a U.S. citizen or lawful permanent resident at the time of the birth.
The Order does not explicitly state those children are categorically not U.S. citizens at birth. Rather, the Order states it is the policy of the United States that no department or agency shall issue a document that recognizes U.S. citizenship (such as a passport) or to accept documents issued by a state or local agency purporting to recognize U.S. citizenship (such as a birth certificate).
The Order, due to take effect on Feb. 19, 2025, 30 days after its issuance, was immediately challenged in four different district courts by a series of states and an immigrant rights group. On Feb. 5, 2025, the U.S. District Court for the District of Maryland was the first federal court to issue a nationwide preliminary injunction, blocking the enforcement of the Order until the constitutionality of the Order is fully litigated. This was followed by other preliminary injunctions issued by the U.S. District Court for the Western District of Washington (Feb. 6), the U.S. District Court of New Hampshire (Feb. 10), and the U.S. District Court for the District of Massachusetts (Feb. 13). The U.S. Department of Justice appealed these preliminary injunctions all the way to the U.S. Supreme Court, challenging the authority of lower-court judges to issue nationwide preliminary injunctions blocking enforcement across the country.
U.S. Supreme Court Rules on Nationwide Injunctions
The U.S. Supreme Court consolidated the suits into one case, Trump v. CASA, Inc.. On June 27, 2025, the Court ruled that lower courts can issue preliminary injunctions to block enforcement of a certain measure for only specific plaintiffs bringing the suit, not across the entire country. As a result, the preliminary injunctions on the Order were partially upheld only on the original parties that brought the suits before the district courts, notably the 23 states that were parties.
The Court also ruled that, for those who are not parties to the original suits, the Order will take effect 30 days after the Supreme Court’s ruling (July 27, 2025). The Court did not directly address the constitutionality of the birthright citizenship restriction of the Order. Thus, a child born to parents who fell under the aforementioned criteria in the Order in the following 27 states after July 27, 2025, would not be able to receive U.S. passports or have their civil documents proving citizenship recognized by the United States government:
- Pennsylvania
- Virginia
- West Virginia
- Ohio
- Indiana
- Kentucky
- Tennessee
- South Carolina
- Georgia
- Alabama
- Mississippi
- Florida
- Louisiana
- Texas
- Arkansas
- Missouri
- Iowa
- Oklahoma
- Kansas
- Nebraska
- South Dakota
- North Dakota
- Wyoming
- Utah
- Montana
- Idaho
- Alaska
Children born in the remaining 23 states, the District of Columbia, and the four U.S. territories of Puerto Rico, Guam, the Northern Mariana Islands and the U.S. Virgin Islands, would continue to have their citizenship documents recognized by the U.S. government.
The Supreme Court’s decision left the door open for other parties, including class action parties, to bring suit and have a preliminary injunction applied to them, which is exactly what happened on July 10, 2025, when the U.S. District Court for the District of New Hampshire certified a class of current and future children all over the country who would be affected by the administration’s policy, and issued a preliminary injunction blocking the order from being enforced upon that class. The preliminary injunction took effect on July 18, 2025, after the U.S. government did not appeal, thereby blocking the Executive Order from being applied to all current and future children who would fall under the Order’s criteria. In the meantime, the litigation on the constitutionality of the Order is still pending.
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For questions or concerns about birthright citizenship or other immigration matters, please contact attorney Christian P. Burr at (860) 240-6131 or cburr@harrisbeachmurtha.com; Practice Group Leader L.J. D’Arrigo at (518) 701-2770 or ldarrigo@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
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