The Trump administration has appealed to the U.S. Supreme Court three lower court injunctions that nationally halted an executive order seeking to redefine birthright citizenship under the 14th Amendment, specifically the citizenship status of certain children born in the United States to non-citizen parents.
On Thursday, acting Solicitor General Sarah M. Harris asked the Supreme Court to allow President Donald Trump’s executive order to go into effect outside of the three districts where preliminary injunctions were placed into effect, and to let the Justice Department start planning how it would implement the executive order. Harris applied for a partial stay in three cases: Trump v. Washington, Trump v. CASA Inc., and Trump v. New Jersey.
The executive order at issue, “Protecting the Meaning and Value of American Citizenship,” was signed on Jan. 20, 2025.
Under the order, United States citizenship would not automatically extend to persons born in the United States: “when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
As legal justification, the order asserts that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” It then states: “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend” to the categories of persons excluded from citizenship by the order.
The injunctions from three distinct district courts in Washington, Maryland, and Massachusetts bar the executive order from going into effect nationally. Acting Solicitor General Harris has sought to limit the temporary injunctions to “the individual plaintiffs and the identified members of the organizational plaintiffs (and, if the Court concludes that States are proper litigants, as to individuals who are born or reside in those States).”
Harris believes the practice of district federal judges issuing national or universal injunctions is constitutionally questionable. “This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched,” Harris argued.
In the three stay applications, Harris noted that birthright citizenship executive order raises “important constitutional questions with major ramifications for securing the border.” But she was hoping the Court would consider her “modest” request to limit the cases to the regions covered by the district courts. For now, the Court has accepted review of the question as to whether it should stay the preliminary injunctions except as they relate to the individual plaintiffs and identified members of the organizational plaintiffs or states.
The Constitutional Argument
In the district court cases, the judges did address the constitutional issues related to the executive orders. On Jan. 23, 2025, in granting the emergency motion for a temporary restraining order, Senior Judge John C. Coughenour of the Western District Court of Washington wrote that “citizenship by birth is an unequivocal constitutional right. It is one of the precious principals that makes the United States the great nation at it is. The president cannot change, limit or qualify this constitutional right via an executive order.”
On Feb. 5, Judge Debra L. Boardman of the U.S. District Court for the District of Maryland granted another preliminary injunction against the order, remarking that “the Executive Order interprets the Citizenship Clause of the Fourteenth Amendment in a manner that the Supreme Court has resoundingly rejected and no court in the country has ever endorsed.”
And Judge Leo T. Sotokin of the United States District Court District of Massachusetts believed the administration’s arguments were flawed and pointed to the landmark decision in Wong Kim Ark (1898). “The way all branches of government have understood the decision for 125 years—Wong Kim Ark leaves no room for the defendants’ proposed reading of the Citizenship Clause. Of course, the defendants can seek to revisit this long-settled rule of law, but that is a matter for the Supreme Court, not a district judge.”
The 14th Amendment’s Citizenship Clause, as well as the Supreme Court’s Wong Kim Ark, established a right to birthright citizenship for the children of immigrants. The Citizenship Clause is the first sentence of the 14th Amendment, and it reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
In the Wong Kim Ark case, Wong was born in San Francisco, Calif., to parents who were Chinese citizens who resided in the United States at the time and did so for 20 years. At age 21, he returned to China to visit his parents; when he returned to the United States, Wong was denied entry on the ground that he was not a citizen. The Supreme Court, in a 6-2 decision, ruled that Wong was a citizen under the 14th Amendment. Justice Horace Gray’s majority opinion said that Wong, having “a permanent domicil[e] and residence in the United States,” became “at the time of his birth a citizen of the United States,” even though his parents were Chinese citizens.
In her stay application, acting Solicitor General Harris repeated an argument made previously by the administration that some immigrants are not under the “jurisdiction of the United States” because of their allegiance to other countries, and birthright citizenship to does not extend to the children of undocumented or temporarily present aliens.
“The [executive] order reflects that the Citizenship Clause does not extend citizenship universally to everyone born in the United States. Rather, the Clause expressly excludes from birthright citizenship persons who are born in the United States but who are not ‘subject to the jurisdiction thereof,’” Harris said. “The original public meaning of the term ‘jurisdiction’ refers [to] ‘political jurisdiction’ (which turns on whether a person owes allegiance to, and is entitled to protection from, the United States), not regulatory jurisdiction (which turns on whether a person must follow U.S. law).”
For now, the Court will just consider the nature and scope of the temporary injunctions. But at some point, the constitutional questions raised in the lower court could reach the Supreme Court to decide.
Scott Bomboy is the editor in chief of the National Constitution Center.
