How birthright citizenship made it back to the Supreme Court

On Friday, the Trump administration asked the Supreme Court to determine the constitutionality of its birthright citizenship order. Although the administration’s decision to do so was not a great surprise, the issue has taken a somewhat meandering path to get to the court.

Upon assuming office on Jan. 20, Trump issued an executive order ending birthright citizenship – that is, the guarantee of citizenship to virtually anyone born in the United States. Shortly after Trump issued the order, a flurry of challenges followed in federal courts around the country.

The administration first came to the Supreme Court in March, asking the justices to pause several rulings by federal judges that temporarily prohibited the government from implementing the order throughout the country while the challenges continued. At the time, the government did not ask the justices to decide whether Trump’s efforts to end birthright citizenship violated either the Constitution or federal law, although the lower courts had concluded in those cases that they likely did. Rather, in Trump v. CASA, it asked the court to prevent lower-court judges from issuing what are known as universal injunctions to block an order nationwide.

The court held oral argument on May 15. At the oral argument, some justices voiced concerns that, if courts concluded that the order was likely illegal but nationwide relief was not available, the Trump administration could ensure that it could still widely enforce the order by acting strategically. Specifically, they suggested, the government could opt not to appeal the rulings against it, which would bar it from implementing the order against the litigants in those cases but would still allow it to enforce the executive order against, as Justice Elena Kagan put it, “the vast majority of people to whom it applies.” At the time, U.S. Solicitor General D. John Sauer sought to allay those concerns, telling Justice Neil Gorsuch that if a court ruled against the Trump administration on the birthright citizenship question it would “absolutely” seek Supreme Court review.

On June 27, the Supreme Court, by a vote of 6-3, repudiated the concept of universal or nationwide injunctions. In a 26-page opinion for the majority, Justice Amy Coney Barrett stressed, among other things, that courts would have the power to issue universal injunctions only if courts had provided similar remedies in early English and U.S. history. But there was no such history, Barrett concluded, and lower courts therefore had no such authority. That said, the court did not decide whether the district courts’ injunctions should be narrower for the states challenging the executive order and instead left it to the “lower courts [to] determine whether a narrower injunction is appropriate.”

The lower courts subsequently ruled for the challengers to Trump’s birthright citizenship order. On Aug. 7, in CASA v. Trump, U.S. District Judge Deborah Boardman certified a class of all children born after Feb. 19, 2025, who would be covered by the order and temporarily barred the Trump administration from enforcing the order against them. She wrote that “the plaintiffs are extremely likely to succeed on the merits of their claims that the Executive Order is unconstitutional.”

In New Jersey v. Trump, Judge Leo Sorokin concluded on July 25 that a nationwide injunction was still “necessary to provide” the group of states challenging Trump’s executive order with “complete relief.” He pointed to, among other things, what he described as “the flagrancy with which the Executive Order contravenes both the Constitution and a federal statute.” The U.S. Court of Appeals for the 1st Circuit heard oral arguments in the Trump administration’s appeal of Sorokin’s initial preliminary injunction on Aug. 1; on Sept. 22, just before the deadline to file its appeal, the government asked that court to review Sorokin’s July 25 order declining to narrow the scope of that injunction.

In yet another case, Barbara v. Trump, U.S. District Judge Joseph Laplante on July 10 issued a preliminary injunction that barred the Trump administration from enforcing the executive order against a class of babies born after Feb. 20, 2025, who are or would be denied U.S. citizenship by Trump’s order. Laplante concluded “that the Executive Order likely ‘contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.’”

And on July 23, a divided panel of the U.S. Court of Appeals for the 9th Circuit ruled that the executive order “is invalid because it contradicts 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 several filings seeking to push back the deadline for the government to respond to the challengers’ complaints, the Trump administration indicated that it planned to ask the Supreme Court to take up the birthright citizenship question imminently: Lawyers for the Department of Justice wrote on Aug. 19 that Sauer planned “to seek” review “expeditiously,” “but he ha[d] not yet determined which case or combination of cases to take to the Court.”

The administration finally did so on Friday. Specifically, Sauer urged the justices to review the ruling by the 9th Circuit, as well as the decision by Laplante in New Hampshire. Sauer told the court that “the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences.”

Although Sauer had the option to ask the court to fast-track its petition, he chose not to. Accordingly, if the justices decide to take the case (for which four votes are needed), it will likely schedule oral arguments for sometime in 2026 and reach a decision at the end of the upcoming term – most likely in late June or early July.

The challengers’ responses will be due 30 days after the government’s petitions for review are docketed, although they could opt to file them sooner. Once those responses are filed, the justices will consider whether to take up the government’s appeals in roughly one month.