What is the Status of Trump Order on Birthright Citizenship?

On January 20, 2025, President Trump issued his Birthright Citizenship Order, eliminating birthright citizenship for people born AFTER the effective date of the order, and who are: 1) a child of an undocumented mother and a father who is not a U.S. citizen or lawful permanent resident; or 2) a child of a mother who is a temporary visitor and father who is not a citizen or lawful permanent resident.

Federal District Court Challenges to Birthright Citizenship Order and Nationwide Injunction

Immediately after the publication of the Birthright Citizenship Order, families, organizations and 22 states sued the Trump Administration in different Federal District Courts around the country.  They argued that the Birthright Citizenship Order is unconstitutional under the 14^th Amendment to the U.S. Constitution.

Because of the serious concerns about the constitutionality of the Birthright Citizenship Order, the Federal District Courts ordered a nationwide injunction, sometimes called a “universal injunction,” which prevented the Birthright Citizenship Order from taking effect while the Courts considered the constitutionality of the Birthright Citizenship Order itself. A nationwide injunction is a court order that prohibits the enforcement of a law nationwide, rather than just in the issuing court’s state or jurisdiction.

The Trump Administration then challenged the nationwide injunction before the Supreme Court, arguing the District Courts did not have the authority to block the Birthright Citizenship Order across the whole country, that the block on the Birthright Citizenship Order should be restricted to the specific state or jurisdiction where the District Court is located, and that the Order should be able to take effect in other jurisdictions.

Supreme Court lifts nationwide injunction but does not rule on legality of Birthright Citizenship Order

On June 26, 2025, the Supreme Court agreed with the Trump Administration that a Federal District Court should not have the authority to block the implementation of an executive order, including the Trump Birthright Citizenship Order, across the entire country.  In its decision, the Supreme Court limited federal judges’ ability to issue nationwide injunctions. The Supreme Court’s order, lifting the nationwide injunction, will not take effect until July 27, 2025.

Very importantly, the Supreme Court did not rule on the legality or constitutionality of the Birthright Citizenship Executive Order itself.  Whether or not the Birthright Citizenship Order is constitutional and will be able to impact the citizenship of people born in the United States has not yet been decided.

Other challenges and potential blocks to Birthright Citizenship Order

Additionally, the nationwide injunction may not be lifted on July 27, 2025 at all because of another lawsuit filed challenging the Order. Immediately after the Supreme Court issued its order lifting the nationwide injunction on the Birthright Citizenship Order, the American Civil Liberties Union (ACLU) filed a nationwide class action lawsuit challenging the Order.  Depending on how the Courts rule on the ACLU’s new class action, it is possible that the Birthright Citizenship Order will continue to be blocked under the new ACLU lawsuit.

If the Supreme Court Order takes effect on July 27, 2025, certain states will still have Birthright Citizenship and others will not

There are 23 states where the injunction of the Birthright Citizenship Order will remain in effect. Those states are Colorado, Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. While not a part of the initial lawsuit against the Trump administration, New Hampshire has issued its own injunction through a separate lawsuit.

This means that in those states listed above, even if the nationwide injunction on the Birthright Citizenship Order is lifted on July 27, 2025, people born after July 27, 2025 in the states listed above will still be considered U.S. citizens.  However, people born after July 27, 2025 outside those states who are the 1) a child of an undocumented mother and a father who is not a U.S. citizen or lawful permanent resident; or 2) a child of a mother who is a temporary visitor and father who is not a citizen or lawful permanent resident will not be considered U.S. citizens.

This will create a very confusing system across the United States, where U.S. citizenship by birth will depend on which state you are born in and whether the lawsuit challenging the constitutionality of the Birthright Citizenship Order is still pending before the Courts.

Regardless of whether the Birthright Citizenship Order takes effect on July 27, 2025, the Courts still must decide whether the Birthright Citizenship Order is constitutional

It is possible that when the various challenges to the constitutionality of the Birthright Citizenship Order eventually reach the Supreme Court for review, the Supreme Court will find that the Order violates the 14^th Amendment of the U.S. Constitution and will strike down the Order altogether, restoring our confidence in our Constitution and birthright citizenship in this country.

For now, it is important to understand that as of the writing of this post, birthright citizenship is still guaranteed for anyone born in the United States.

We will provide updates on this critical issue as they are available. For additional questions regarding Birthright Citizenship in the United States or any other immigration matter, please contact Kolko & Casey, P.C. at (303) 371-1822.