SCOTUS Considers Birthright Citizenship

On May 15, 2025, the U.S. Supreme Court heard oral arguments in Trump v. CASA, Inc., Trump v. Washington, Trump v. New Jersey, all of which challenge President Donald Trump’s executive order to end birthright citizenship for the children of undocumented and temporary immigrants.While the issues before the Court are largely procedural at this point, the Court’s decision will still be consequential, particularly with regard to lower courts’ issuance of nationwide injunctions.

Facts of the Case

The cases center on President Trump’s Executive Order regarding birthright citizenship, entitled Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14156 (Citizenship Order or Executive Order). The Citizenship Order proclaimed that birthright citizenship under the Fourteenth Amendment does not apply to children born in the United States when: (1) their mother was unlawfully present in the country and their father was neither a U.S. citizen nor a permanent resident at the time of the child’s birth; or (2) when their mother was lawfully, but temporarily, present in the United States and their father was neither a U.S. citizen nor a permanent resident.

In support of the Executive Order, attorneys for the Trump Administration argue that birthright citizenship does not include the children of legal and illegal aliens because such persons are not “subject to [U.S.] jurisdiction” as set forth in Constitution’s Citizenship Clause. Pursuant to the 14^th Amendment: “All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

The 14th Amendment repudiated Dred Scott v. Sandford, 19 How. 393 (1857), which infamously misinterpreted the Constitution to deny U.S. citizenship to people of African descent based solely on their race. Congress has reaffirmed the Citizenship Clause in the Immigration and Nationality Act (INA), while the U.S. Supreme Court affirmed the existence of birthright citizenship in United States v. Wong Kim Ark. It held that the 14^th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children born here of resident aliens.”

Citing this precedent, the Citizenship Order was quickly met with legal challenges. Three district courts in Maryland, Massachusetts, and Washington have issued nationwide injunctions at the behest of 22 States, two organizations, and seven individuals.

Issues Before the Supreme Court

The Trump Administration asked the Supreme Court to grant a partial stay, seeking to limit the scope of the injunctions to cover only those individuals directly impacted by the relevant court orders.

“These cases — which involve challenges to the President’s January 20, 2025 Executive Order concerning birthright citizenship — raise important constitutional questions with major ramifications for securing the border,” Acting U.S. Solicitor General Sarah Harris wrote. “But at this stage, the government comes to this Court with a ‘modest’ request: while the parties litigate weighty merits questions, the Court should restrict the scope of multiple preliminary injunctions that purport[t] to cover every person… in the country, limiting those injunctions to parties actually within the courts’ power.”

On April 17, 2025, the Court consolidated the cases for oral argument, agreeing to consider the following issue: “Whether the Supreme Court should stay the district courts’ preliminary injunctions except as to the individual plaintiffs and identified members of the organizational plaintiffs or states.”

Oral arguments were held on May 15, 2025. As reported by SCOTUSblog, U.S. Solicitor General D. John Sauer argued that President Trump’s Citizenship Order “reflects the original meaning of the 14th Amendment,” which was only intended to apply to the children of former enslaved persons. Sauer also addressed nationwide injunctions, characterizing them as a “bipartisan problem that has now spanned the last five” presidential administrations. He further argued that universal injunctions create a number of issues, such as preventing novel legal questions from developing in the lower courts, allowing plaintiffs to forum shop, requiring courts to act too quickly, and creating an “ongoing risk of conflicting judgments.” 

In response, Kelsi Corkran, an attorney for the private plaintiffs challenging the Citizenship Order, emphasized that “every court to have considered the issue” has determined that Trump’s executive order is “patently unlawful.” Representing the states challenging the order, Jeremy Feigenbaum, the solicitor general of New Jersey, argued that universal injunctions should still be allowed in cases where alternative remedies are not legally or practically workable.

During oral arguments, several justices questioned the use of nationwide injunctions. “We survived until the 1960s without universal injunctions,” Justice Clarence Thomas stated. At the same time, justices also questioned whether class actions would be a suitable alternative.

At this point, it is unclear how the Court will rule. A decision is expected by early July. Please check back for updates.