By Monica Singh, Esq., Business Immigration Department Chair
In Trump v. CASA, the Supreme Court considered a first-of-its-kind executive order that aimed to deny birthright citizenship to babies born in the U.S. if neither parent were a U.S. citizen or a U.S. lawful permanent resident. In this case, the plaintiff’s attorney brought a lawsuit based on specific named individuals and organizations. In a 6-3 decision, the conservative majority issued a troubling decision that fell short of answering the question of whether the 14th Amendment still guarantees citizenship to everyone born on U.S. soil. Instead, the Court zeroed in on the procedure being used, specifically nationwide injunctions, also known as universal injunctions, that were issued by the lower courts to block the executive order across all fifty states. An injunction is a court order that prohibits a person or entity from engaging in a specific act. The Supreme Court found that the courts had exceeded their authority by issuing injunctions that applied to persons beyond the named plaintiffs in the lawsuit.
The underlying Order at issue is the January 20, 2025 Executive Order 14160, directing federal agencies to deny birthright citizenship to children born in the U.S. on or after February 19, 2025, unless at least one parent is a U.S. citizen or lawful permanent resident. Within days, the Executive Order was challenged in courts across the country, with multiple judges issuing nationwide injunctions halting its implementation across the U.S. These injunctions were the legal mechanism used to halt enforcement, until the Supreme Court considered the case, Trump v. CASA. In its decision, the Supreme Court restricted the lower courts from using nationwide injunctions as a blanket legal tool, effectively ceasing the courts’ ability to grant swift relief in a far-reaching way.
The executive order was temporarily paused following the Supreme Court’s decision while attorneys for affected plaintiffs immediately pivoted, now filing class-action lawsuits, rather than seeking blanket injunctions, to preserve protections for children born in the U.S. The new legal strategy is litigating on behalf of entire classes, i.e. one or more people suffering a similar harm, such as the denial of citizenship to those born in the U.S. after July 27, 2025. It will become the preferred method of procedure to block the executive orders while avoiding the now-limited nationwide injunction model. For example, just a few weeks after the Court issued its ruling in Trump v. Casa, a federal court in New Hampshire reviewed a class action lawsuit in Barbara v. Trump. In that case, the plaintiffs’ attorneys brought a class action lawsuit, employing a deliberate strategy from the start to request the judge to certify the class as all U.S.-born children of non-citizen parents who would be denied citizenship under EO 14160. The New Hampshire federal judge certified the class itself as nationwide, enabling him to issue a nationwide injunction based on the class itself, keeping the executive order on hold since it was tied to the class, rather than issuing a now impermissible blanket or universal injunction.
While the administration has stated it will take further actions to restrict birthright citizenship, given the current legal landscape, lawyers will need to rely on the class action workaround to obtain nationwide injunctive relief, find another legal mechanism to obtain blanket injunction, or obtain relief on a state by state basis.
Although the Order is currently on hold, future executive actions could change its status. If the Executive Order is permitted to move forward, the following categories of individuals will no longer be considered to be born “subject to the jurisdiction” of the United States and therefore will no longer be U.S. citizens at birth: (1) children whose “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”; and (2) children whose “mother’s presence in the United States at the time of said person’s birth was lawful but temporary, such as those who entered on the visa waiver program, as a student, a nonimmigrant or tourist, and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
If you have concerns about potential implications for your family and need legal guidance, an experienced attorney can help address your questions. To discuss your situation, please contact Monica Singh, Esq., or call our office at (610) 975-4599 to schedule a consultation.
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Reviewed by Taylor S. Adams, Esq., Associate Attorney