Supreme Court strikes down birthright-citizenship order

On 30 June 2026 the Supreme Court struck down Executive Order 14160 of 20 January 2025, “Protecting the Meaning and Value of American Citizenship,” holding in Trump v. Barbara, No. 25-365, that the order cannot be reconciled with the Citizenship Clause of the 14th Amendment.¹ Writing for the majority, Chief Justice Roberts held that “children born of parents unlawfully or temporarily present in the United States” “satisfy both elements of the Citizenship Clause”: “Under the Constitution, they are citizens at birth.”¹² Roberts was joined by Justices Sotomayor, Kagan, Barrett and Jackson; the constitutional holding thus commanded five votes, with Justice Kavanaugh — concurring in the judgment and dissenting in part — supplying the sixth vote on statutory grounds; in his view the order “does not violate the Fourteenth Amendment” but does violate the federal citizenship statute, which Congress “could amend.” Justice Alito dissented, calling the ruling “one of the most important decisions in the history of the Court” and “a serious mistake” because in his reading the amendment “confers citizenship on only those children who, at birth, owe allegiance solely to this country”; Justice Thomas filed a dissent joined by Justice Gorsuch calling the majority’s account “not historically accurate,” Gorsuch added a separate brief dissent, and Justice Jackson filed a concurrence joined in part by Justice Sotomayor.² The majority grounded the holding in the common-law rule carried into the amendment — “[a] child born on American soil and subject to American law was made an American citizen” — and in United States v. Wong Kim Ark, 169 U.S. 649 (1898), whose rule the Court said it has “repeatedly understood … to guarantee citizenship to all children born in the United States and subject to its power”; Roberts closed: “Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”²

1. Executive Order 14160 was signed 20 January 2025 with a 30-day effective date, was enjoined before taking effect, and never became operative; after the Court’s 27 June 2025 ruling in Trump v. CASA, Inc. barred universal injunctions (see Supreme Court restricts universal injunctions in Trump v. CASA), Judge Joseph Laplante of the District of New Hampshire on 10 July 2025 certified a class of children born on or after 20 February 2025 who are or would be denied citizenship by the order and preliminarily enjoined its enforcement against the class, concluding the order likely “contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.” The government petitioned for certiorari before judgment — bypassing the First Circuit, where the appeal was pending — on 26 September 2025 under Supreme Court Rule 11; the Court granted on 5 December 2025 and heard argument 1 April 2026.³⁴

2. The class-wide injunction affirmed in Barbara is itself the post-CASA remedial template: relief runs to a certified Rule 23 class rather than universally, and the Court’s merits holding now converts the class-wide question into a rule of decision binding in all courts. Administration compliance requires no rulemaking — the order was never operative — but reaches the four officials directed by EO 14160 § 3(a) to conform their agencies’ policies: the Secretary of State (passports), the Attorney General, the Secretary of Homeland Security (whose USCIS issues citizenship certificates) and the Commissioner of Social Security (enumeration); § 2 states the government-wide policy that “no department or agency of the United States government shall issue documents recognizing United States citizenship” for covered children.⁵

3. Justice Kavanaugh’s statutory concurrence marks the legislative pathway the majority’s constitutional holding forecloses only in part: Congress, he wrote, “could amend” the citizenship statute “or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.” Under the majority’s constitutional holding, however, a statutory exception would face the same Citizenship Clause bar the executive order did — a constraint alterable only by constitutional amendment.²⁶

Corrections

• 2026-09-21: The footnote supporting the Rule 11 reference cited the 2023 Rules of the Supreme Court of the United States. That edition had been superseded on 16 March 2026 by the Rules adopted 17 February 2026, three and a half months before this case was decided, so the post cited an edition that was not in force. The footnote now cites the 2026 edition and quotes the rule’s text. Rule 11 is materially unchanged between the two editions — certiorari before judgment still requires “a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court” — so the proposition the footnote supported was correct; the authority given for it was not.⁷