On his first day in office, President Donald Trump issued an executive order seeking to end the constitutionally-guaranteed right to birthright citizenship. The American Civil Liberties Union and our partners swiftly sued to block that cruel and lawless action, as did other groups of plaintiffs around the country.
The Trump administration took several of these cases to the Supreme Court, asking it to limit lower courts’ ability to block illegal policies like this one, and for permission to enforce its order against thousands of babies nationwide. The Court ruled for the Trump administration in part, leaving many of those families confused and afraid of what might come next.
Several months later the case remains complex, with multiple legal challenges and appeals. Below, we lay out how the court ruled, where birthright citizenship stands today and what happens next.
The Fight for Birthright Citizenship, Explained
Hours after Trump signed his executive order, the ACLU and our partners filed a lawsuit, NHICS v. Donald J. Trump, challenging Trump’s executive order in federal court. Within days, other legal challenges followed and several judges issued injunctions that blocked the order, temporarily halting enforcement and preventing harm while the legal challenges proceeded.
In response, the Trump administration filed emergency applications asking the Supreme Court to narrow the injunctions by limiting their protections from the entire country to just a handful of individual plaintiffs. Usually, this kind of request is decided based on written arguments. But, in an unusual move, the court agreed to hear oral arguments in a special session held on May 15.
On June 27, the Supreme Court issued a ruling that potentially cleared the way for Trump’s order to take effect nationwide. In Trump v. CASA, Inc. the court limited the availability of what’s known as “universal injunctions.” These legal tools prohibit or require certain actions not just for the parties involved in a particular case, but for all persons or entities. The Supreme Court limited the availability of these universal injunctions in general, but ultimately left it to lower courts to decide whether broad relief was justified in these particular cases. That meant that, as of July 27, tens of thousands U.S.-born babies could be left vulnerable to arrest, deportation, discrimination, and denial of critical early-life nutrition and health care.
Immediately after the Supreme Court’s ruling, the ACLU and our partners filed a new class action lawsuit, Barbara v. Donald J. Trump. A class action lawsuit is a different legal tool that can also broadly block harmful or unconstitutional policies. We identified a class of people – in this case all children born on U.S. soil to parents who are undocumented or have temporary status – and asked the court to let us proceed with the case on behalf of the entire class (called “class certification”) and to block the executive order as to everyone in the class. On July 10, a federal court provisionally granted nationwide class certification, recognizing the protected class and again blocking the executive order from taking effect while questions over the legality of Trump’s order continue to move through the courts.
Where the Legal Battle Stands Now
Right now, every child whose citizenship was threatened by the executive order is protected. While the legal fight is far from over, these families can now take solace in knowing that they are protected while the cases make their way through the courts.
The fight over “universal injunctions” that culminated in the Supreme Court’s CASA decision and limited how this legal tool is used will have significant implications for future cases. But the Trump administration’s procedural win in that case was ultimately an empty victory when it comes to birthright citizenship. The Barbara injunction protects everyone and it is not vulnerable to the kind of arguments that the government offered in CASA. In fact, the Supreme Court pointed to class actions,like Barbara, as an appropriate way to obtain nationwide protection.
Importantly, the Trump administration has not yet appealed the ruling in Barbara or sought to have the Supreme Court block it. They were granted a seven-day window to seek an emergency stay, but that deadline passed without any action from the government.
Birthright Citizenship Remains Protected
Importantly, the CASA decision did not in any way question whether the 14th Amendment protects birthright citizenship. It does; as the Supreme Court made crystal clear more than 125 years ago. Trump’s executive order is blatantly illegal, violating both the 14th Amendment and a statute passed by Congress. President Trump has no power to change those facts.
One court of appeals has already ruled against the Trump administration on these merits questions, concluding that the executive order cannot stand. In the NHICS lawsuit — the one we filed just hours after Trump signed the order, directly challenging its legality – a court of appeals heard oral arguments on August 1.
Where the Fight Goes From Here
The legal fight could take many paths from here. Right now, however, our win in Barbara ensures that there is no reason for families to fear whether they need to move, give birth in another state, or take other drastic steps to secure their children’s citizenship. Expectant parents can feel confident that their babies will still be recognized as U.S. citizens at birth — regardless of their immigration status or where they live.
In the courts, the appeals process could take some time, or move quickly to the Supreme Court. When the government presumably brings one or more cases to the Supreme Court, the court will have to decide whether to hear the appeals — and if it accepts the case or cases, more written legal briefs and oral arguments will follow. It may take years to work through the process and put a final end to this lawless executive order. Whatever path the litigation takes, the ACLU is ready to fight every step of the way. Our goal is to ensure that nobody is ever subjected to this unconstitutional order.
Birthright citizenship isn’t just a legal doctrine — it’s central to who we are as a nation. It reflects that all children born in this country belong here, and are equal members of our national community, no matter who their parents may be. The Constitution is on our side, and the ACLU will keep fighting to ensure this remains a fundamental right for future generations.
ACLU’s co-counsel in the NHICS and Barbara cases are: NAACP Legal Defense and Education Fund, Asian Law Caucus, Democracy Defenders Fund, and ACLU’s of New Hampshire, Maine, and Massachusetts. Our organizational clients in NHICS are New Hampshire Indonesian Community Support, League of United Latin American Citizens, and Make the Road New York.
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