The court rightly concluded that the order is barred by the Supreme Court’s decision in Trump v. Barbara.
Last month I discussed Trump’s newly issued executive order aimed at revoking birthright citizenship for several categories of children born on American soil, and I highlighted the initial lawsuits challenging it.
As I noted at the time, nearly the entire order clashes with the Court’s recent decision in Trump v. Barbara, which invalidated Trump’s prior attempt to deny birthright citizenship to children of undocumented immigrants born in the United States, and to children born to non-citizen parents here on temporary visas.
The Fourteenth Amendment grants citizenship to every child born or naturalized in the United States and subject to its jurisdiction. In Barbara, the Supreme Court majority explained that “subject to the jurisdiction thereof” covers children whose parents are bound to obey U.S. law and are required to do so.
Today, in Casa, Inc. v. Trump, U.S. District Judge Deborah Boardman, sitting in the District of Maryland, issued a ruling that imposes a preliminary injunction blocking the new order. It stands as the first judicial determination on Trump’s birthright citizenship executive order. As Judge Boardman stated, “[t]he 2026 Executive Order is almost certainly unconstitutional as applied to the certified class for the simple reason that the Supreme Court in Barbara already decided that the children in the class are citizens at birth.” She goes on to explain why:
When the Supreme Court explained the meaning of “subject to the jurisdiction” of the United States, it distinguished between people over whom the United States has the power to govern (and who are thus subject to the jurisdiction of the United States) and people over whom the United States does not have the power to govern (and who are thus not subject to the jurisdiction of the United States). See Barbara, 146 S. Ct. at 2449– 50… . The latter category of people falls into the “narrow exceptions” to the rule of citizenship by birth that are implicated when the United States does not have the “full and complete power” to govern over people born on its land. Id. at 2450. Those “narrow exceptions” include “children of foreign ministers” and “members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign).” Id.
This is pretty obviously correct. As explained in my earlier post on the new executive order, that order targets four groups, almost all of whose members are clearly subject to U.S. law:
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Children born to “alien enemies,” defined as those where at least one of two non-citizen parents is a “designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism).
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Children born to at least one non-citizen parent who is a “foreign government employee” or employed by an “international organization that possess[es] international-organization immunity.”
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Children where “either parent” has engaged in “birth tourist” transactions of various kinds (deliberately seeking to give birth in the US so the child would get birthright citizenship).
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Children “born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.” …[T]his only applies to children born in American Samoa, the one populated overseas US territory to whose residents Congress has not conferred citizenship by statute….
As I explained more fully in the earlier post, all of the children in these four categories are obviously subject to US law, with the exception of those born to foreign diplomats who have diplomatic immunity. This latter group is already excluded from birthright citizenship. In that post, I also explained why the analogy between “alien enemies” (as defined in the order) and children of members of an invading army occupying US territory fails.
Judge Boardman’s ruling also covers a number of procedural issues I will not attempt to go over here. But the bottom line is she has imposed a preliminary injunction blocking implementation of the order with respect to a previously certified class of all children born on US territory and subject to the 2025 executive order, to parents who are unlawfully present in the US or here on temporary visas (the class was certified as part of the litigation challenging Trump’s earlier birthright citizenship order).
This covers pretty much all the people potentially affected by the new birthright citizenship order and born after February 19, 2025 (when the earlier executive order took effect), except those born to legal residents of American Samoa, in category 4 above. It is not clear whether the administration will try to implement the order against children born before February 2025. As noted in Judge Boardman’s opinion, “[n]owhere in the order does it indicate it does not apply to children already born.” The government’s lawyers claimed it would only apply to children born in the future, but these assurances may not be credible. If the administration does try to enforce the order against children born before February 2025, further litigation will be needed to stop that.
Today’s ruling is probably only the beginning of the litigation over the new order. The administration is likely to appeal. But I hope and tentatively expect that appellate courts – including, potentially, the Supreme Court – will rule much the same way. The new order is pretty obviously at odds with Trump v. Barbara – and also with the text and original meaning of the Citizenship Clause of the Fourteenth Amendment.
