Civil Rights Brief #245 | Rodney A. Maggay | July 2025
On the first day of his second presidential term, President Donald J. Trump issued Executive Order No. 14160. This executive order is popularly known as the birthright citizenship executive order which purports to make changes to the Birthright Citizenship rule embodied in the 14th Amendment to the United States Constitution. That rule declares, with modest exceptions, that children born within the geographic territory of the United States are instantly granted United States citizenship. That constitutional rule was later affirmed by the United States Supreme Court in the 1898 case United States v. Wong Kim Ark. However, with the ongoing national debate on immigration and immigrants in the United States, President Trump made a campaign promise to abolish the rule in order to try and stem the flow of immigrants from Latin American and South American countries to the United States.
In response to the executive order, three lawsuits were filed in three separate federal district courts (in the states of Maryland, Massachusetts and Washington) to prevent enforcement of the executive order. In all three cases, the federal district court agreed with the plaintiffs and issued a nationwide injunction that temporarily paused enforcement of the order until the cases were resolved at trial. The cases were then appealed and consolidated at the Supreme Court but with a new twist. Instead of arguing for the overturn of the birthright citizenship rule embodied in the Fourteenth Amendment and the United States v. Wong Kim Ark case, the government asked the Supreme Court to review the issuance of nationwide injunctions by federal district courts. The government argued that these injunctions were improper as they prevented the Trump Administration from implementing their policy agenda prior to trial.
The question thus presented to the Supreme Court to resolve was not whether the birthright citizenship executive order violated the U.S. Constitution but whether federal courts have the authority to issue injunctions that covered the entire U.S. under the Federal Judiciary Act of 1789. On June 27, 2025, the Supreme Court issued a 6 – 3 decision holding that federal courts were not authorized under their equitable powers to issue a national injunction. LEARN MORE
Policy Analysis: While many news articles and reports tried to frame the opinion as a win for President Trump and an expansion of executive branch power, the case can more properly be classified as a case that dealt with an aspect of legal procedure for federal courts. To be clear, the Supreme Court did not review the birthright citizenship rule as it examined the case nor did it likely give the President a “win” as so many right – wing news outlets tried to claim. The immediate impact of the decision is that it narrowed how much of President Trump’s policy agenda (or any President in the future) can be temporarily paused before a trial.
Justice Amy Coney Barrett’s majority opinion states that the Federal Judiciary Act of 1789 does not give federal courts the power to issue a national injunction since that power did not exist at the time the Federal Judiciary Act was passed more than two hundred years ago. Nor was the power to issue national injunctions contemplated as a power under that Act. Justice Sonia Sotomayor’s dissent pushes back on Justice Barrett’s assertions by claiming that equitable powers of a federal court were meant to be “flexible” in order to dispense justice. This flexibility would certainly include the power to craft a national injunction if the need arises. Justice Sotomayor also forcefully states that the Government would not suffer irreparable harm if a court paused the implementation of a president’s policy. This is because all the Court would be ordering is for the Government to follow the law (the birthright citizenship rule) while his policy or executive order is temporarily paused until a trial is concluded. While Justice Barrett does make a meritorious argument with her opinion she misses or refuses to address the points made in Justice Sotomayor’s dissenting opinion. This makes Justice Sotomayor’s points – rooted in “history and tradition” – more persuasive than Justice Barrett about the use of national injunctions.
But another aspect of the decision comes from Justice Brett Kavanaugh’s concurring opinion. While he joins Justice Barrett’s majority opinion in full, he brings up an interesting scenario when the request for a temporary preliminary injunction is brought against a major new federal statute or executive order. Justice Kavanaugh suggests that there should be a uniform legal standard when granting a national injunction or not in order to prevent conflicting decisions from different states and regions. He cites the chaotic nature where individuals would not know whether the new statute is valid, temporarily paused or outright invalid while a trial proceeds. In order to prevent this confusion before a trial is finished, sometimes taking years, he suggests that the Court make an exception and determine an interim legal status for major new statutes, but not for any ordinary run – of – the – mill injunctions that are often presented to the Court. Justice Kavanaugh’s opinion suggests a possible opening for the use of national injunctions in the future which is decidedly different from Justice Barrett’s opinion which has ruled out the use of national injunctions based on English common law.
Whatever new rules develop about what federal courts can or cannot do from this opinion, it is the birthright citizenship rule that provided the backdrop to this case. And since the Court did not rule on the merits of the rule, the birthright citizenship rule is still valid. Babies born today anywhere in the United States will still be granted United States citizenship. But the Trump Administration is treading on shaky ground if it believes that they now have a green light to implement whatever domestic policy they want without having to be accountable to a court. Since the birthright citizenship rule was not overturned by the Supreme Court, the Trump Administration still has a duty to obey the Constitution and all lawful statutes and Supreme Court precedents. Do they expect to deprive babies born in the U.S. from U.S. citizenship? The Trump Administration cannot legally do that because the birthright citizenship rule is still valid and the national rule of the land. It would also likely be an operational disaster too if the Trump Administration tried to deprive babies of citizenship across so many differing states. So, despite prevailing in the Supreme Court in the Trump v. Casa, Inc. birthright citizenship case, it does not appear likely that his executive order can be enforced for the moment. All the case does is limit what a federal court can order prior to trial while all babies born today and going forward within United States territory can still be granted United States citizenship. The case will likely land before the Supreme Court again to decide the birthright citizenship rule but that will come at a later date. LEARN MORE
Engagement Resources:
- American Civil Liberties Union (ACLU) – non – profit group’s petition to save birthright citizenship.
National Public Radio (NPR) – possible options for birthright citizenship after SCOTUS ruling.