On December 5, 2025, the Supreme Court of the United States granted review in a case that will determine the constitutionality of President Donald Trump’s executive order on birthright citizenship.
Quick Hits
- In its 2025–26 term, the Supreme Court of the United States will decide the constitutionality of President Trump’s executive order limiting birthright citizenship.
- Oral arguments are expected to take place in the spring of 2026; the Supreme Court is expected to issue a ruling by summer 2026.
- Although the executive order is on hold pending the Supreme Court’s decision, USCIS has issued guidance outlining how the order would be applied and enforced, if upheld.
In January 2025, President Trump issued Executive Order (EO) No. 14160, which aimed to place restrictions on birthright citizenship for children born in the United States to parents who were present in the country temporarily or without lawful status. The order would significantly abridge the long-standing constitutional guarantee of automatic citizenship for virtually all children born in the United States, as recognized in the Supreme Court’s 1898 decision in United States v. Wong Kim Ark. The order has not yet taken effect; multiple lawsuits produced preliminary injunctions in the lower courts. However, U.S. Citizenship and Immigration Services (USCIS) published an implementation plan in July, outlining how the order would be applied.
Background on EO 14160
Section 1 of the executive order provides that a child born in the United States would no longer automatically be entitled to citizenship at birth in two situations: (1) when the mother was unlawfully present and the father was not a U.S. citizen or lawful permanent resident; or (2) when the mother’s presence was lawful but temporary (for example, under the Visa Waiver Program or on a student, work, or tourist visa) and the father was not a U.S. citizen or lawful permanent resident.
EO 14160 directs federal agencies to withhold citizenship documentation for such births, with the policy applying prospectively thirty days after the order, while clarifying that it does not affect, for example, children of lawful permanent residents. The order frames this position as consistent with the Fourteenth Amendment to the United States Constitution and 8 U.S.C. § 1401’s “subject to the jurisdiction” language.
Legal Challenges to EO 14160
Multiple lawsuits were filed challenging the executive order on birthright citizenship as unconstitutional under Section 1 of the Fourteenth Amendment (the “Citizenship Clause”). Federal district judges in Washington State and Maryland entered injunctions blocking enforcement while the cases proceeded. In late June, in Trump v. CASA, Inc., the Supreme Court curtailed federal district courts’ use of so-called nationwide (universal) injunctions, without resolving the order’s constitutionality, and litigation continued in the lower courts.
Following CASA, in Barbara v. Trump, a federal district judge in New Hampshire issued a preliminary injunction and an order granting provisional class certification, which prevented the Trump administration from enforcing the executive order against a certified class of babies born on or after February 20, 2025, who otherwise would be denied U.S. citizenship under the executive order. And in State of Washington v. Trump, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that the executive order was “invalid because it contradict[ed] the plain language of the Fourteenth Amendment’s grant of citizenship to ‘all persons born in the United States and subject to the jurisdiction thereof.’”
In September 2025, the Trump administration’s lawyers petitioned the Supreme Court for review. The Trump administration’s certiorari petition requested that the Supreme Court review both Washington and Barbara; however, the Court’s order of December 5, 2025, indicates it will only take up the issue in Barbara. The case, expected to be argued in the spring with a definitive ruling to be issued by the end of June or early July 2026, will likely determine the future of birthright citizenship in the United States.
USCIS’s Implementation Plan for EO 14160
Although the EO is on hold pending the Supreme Court’s decision in Barbara, USCIS’s implementation plan, released on July 25, 2025, outlines how the order would be applied if it were ultimately upheld. The memo explains that “unlawfully present” refers to people in the United States without permission or those who have stayed longer than allowed, as defined in Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA). It also explains the difference between “unlawful status” and “unlawfully present.” For example, people paroled into the United States might not have a lawful immigration status, but they are not considered unlawfully present if they have permission to stay from the attorney general.
Since the term “lawful but temporary” presence isn’t clearly defined in the INA, USCIS has provided its own definition. This includes people who are in the United States legally for a limited time or under conditions that require them to reapply for continued stay. Examples include nonimmigrants, parolees, temporary protected status (TPS) beneficiaries, and deferred action recipients. USCIS also addresses the status of children born in the United States to parents with lawful but temporary status. These children do not automatically acquire U.S. citizenship at birth if their parents are not U.S. citizens, lawful permanent residents, or U.S. nationals. To avoid negative immigration consequences for these children, the U.S. Department of Homeland Security (DHS) and USCIS propose allowing them to register and acquire the lawful status of at least one parent.
This proposal is similar to existing provisions for children of foreign diplomats born in the United States, who can acquire lawful immigration status through registration. Until this proposal is implemented, DHS suggests deferring immigration enforcement actions, including detention, removal, or deportation against these children, even though they may not be recognized as U.S. citizens under the proposed policy.
If the constitutionality of the executive order is upheld, a U.S. birth certificate alone would no longer suffice as proof of citizenship. Parents would need to provide documentation of the mother’s lawful status or the father’s citizen or permanent resident status.
Next Steps
With the executive order’s enforcement currently halted, the future of this policy remains uncertain. The Supreme Court will determine whether to uphold EO 14160, with significant implications for foreign nationals in the United States, depending on the scope of the ruling. The Supreme Court is expected to issue a ruling in June or July of 2026.