Trump asks the Supreme Court to take up birthright citizenship
DOJ asked SCOTUS to review lower-courts blocks on EO 14160. The Justices have not ruled on birthright citizenship yet.
First, how did we get here
On January 20, 2025, President Donald Trump signed Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.” The order directs federal agencies not to recognize U.S. citizenship for babies born 30 days after the order if the mother was either unlawfully present or only lawfully present on a temporary basis at the time of birth, and the father was not a U.S. citizen or lawful permanent resident. It also established a 30-day ramp-up window.
Multiple suits were filed immediately by immigrant-rights groups and states, and several district courts issued broad injunctions blocking the policy.
In a June 27, 2025 order in Trump v. CASA, the Supreme Court did not decide the constitutionality of the order. Instead, it curtailed “universal” (nationwide) injunctions and limited relief to the parties before the court. The opinion explicitly said it was not reaching the merits of whether EO 14160 violates the Fourteenth Amendment or federal nationality law.
Litigation continued. The First, Fourth, and Ninth Circuits entertained challenges, and on July 24, 2025 the Ninth Circuit affirmed an injunction blocking the order — the first appellate ruling reaching the merits.
Separately, after CASA, a New Hampshire district court certified a class and issued an injunction protecting “babies born on or after” the order’s effective date; the class-wide route was one way plaintiffs continued to obtain broad relief even as universal injunctions were narrowed.
What’s new — the administration’s filings
On Friday, September 26, 2025, the Justice Department petitioned the Supreme Court to review lower-court decisions that blocked the executive order. The government asked the justices to take up two tracks — a case brought by states and another from New Hampshire — and to resolve the legality of limiting birthright citizenship for children of undocumented immigrants and short-term visitors. Reuters, AP, and Politico all reported on the filings, and note the government’s argument that universal birthright citizenship “incentivizes illegal migration” and “birth tourism.” The petitions ask for quick review in the Court’s new term. The Court has not yet said whether it will hear the cases.
The administration says the Citizenship Clause’s phrase “subject to the jurisdiction thereof” concerns political allegiance and lawful domicile — not mere presence within U.S. territory — and so does not cover children of people here unlawfully or here only temporarily. That is the same theory the order embodies.
What courts have said before
The controlling landmark is United States v. Wong Kim Ark (1898). There, the Supreme Court held that a man born in San Francisco to Chinese subjects was a U.S. citizen by birth, reaffirming the English-common-law rule of jus soli — citizenship for almost all born on U.S. soil — with narrow exceptions for children of diplomats, of enemy forces in hostile occupation, and (historically) certain members of sovereign tribes. Later decisions and government practice have followed that broad understanding for well over a century.
Two other pieces of doctrine matter. First, Plyler v. Doe (1982) treated undocumented immigrants as “within the jurisdiction” for Equal Protection purposes, reinforcing that the Constitution’s protections apply to people physically present and subject to U.S. laws (though Plyler addressed schooling, not citizenship). Second, Congress long ago codified jus soli in 8 U.S.C. § 1401, reflecting the same baseline rule.
What the Supreme Court has done in this controversy so far is procedural. In Trump v. CASA it limited universal injunctions and left the merits unresolved, explicitly saying the applications “do not raise — and thus we do not address — whether the Executive Order violates the Citizenship Clause or the Nationality Act.” Lower courts, including the Ninth Circuit, have reached the merits and blocked the order as unconstitutional.
Inside the filings — the executive order and agency posture
The Federal Register entry and White House publication spell out EO 14160’s two scenarios and the 30-day implementation window. After CASA, agencies issued “implementation guidance” limited to internal planning because enforcement against the public remained enjoined for named plaintiffs or classes. State and federal guidance pages reflect that posture — USCIS, State, HHS, and SSA posted implementation memos noting court blocks and the order’s prospective-only scope.
Misrepresentations circulating in media and on socials
Three recurring claims stand out.
The Supreme Court already upheld Trump’s order.
False.
The June 27 CASA ruling narrowed injunctions but expressly declined to decide whether the order is lawful. Multiple courts have since blocked enforcement on the merits, and the administration’s September 26 petitions are a request for the Supreme Court to decide that question for the first time.
The policy is retroactive and strips citizenship from kids who already have it.
False.
The order is prospective, keyed to births 30 days after issuance, and agencies’ own guidance reflects non-retroactivity and the existence of injunctions. Reuters and agency documents underscore that the litigation is about future births and recognition at issuance, not revoking past citizenship.
The U.S. is the only country with birthright citizenship.
False.
AP’s fact-check notes roughly 30 countries, including Canada and Mexico, grant jus soli. That said, the scope varies internationally.
On the pro-restriction side, some commentary suggests Wong Kim Ark never addressed children of unlawfully present parents. The Wong majority’s reasoning was broader — it rooted the Clause in the common-law territorial rule with narrow exceptions, which is why most judges and mainstream treatises have read it to cover nearly everyone born here. The government’s new petitions argue for a narrower reading; that is the live dispute before the Court.
What the Court might do — and realistic outcomes
The Justices will first decide if they’ll grant review. The petitions emphasize that the issue is a pure question of constitutional law, already percolated in multiple circuits, and of exceptional national importance. Given the Ninth Circuit merits decision against the order and the number of parallel cases, a grant is plausible, but not guaranteed.
Timing note: if granted early in the term, argument could fall in early 2026.
If the Court takes the case, the key question will be whether “subject to the jurisdiction thereof” excludes children born to undocumented or temporary-status parents. The administration urges an allegiance/domicile reading. Opponents point to Wong Kim Ark’s common-law rule and to consistent practice for 125 years. Most neutral analyses expect the Wong framework to remain controlling, but there is open debate among some originalist scholars and in amicus briefs from organizations like the Claremont Institute urging a break from that understanding. Courts so far (including the Ninth Circuit) have treated the order as likely unconstitutional. None of that binds the Supreme Court, which could: (a) reaffirm the broad jus soli rule and invalidate the order; (b) adopt a narrower reading for some subset of parents; or (c) avoid the merits on statutory or remedial grounds.