Protecting Birthright Citizenship in America

By Darius Spearman (africanelements)

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The Fight for Birthright Citizenship

Legal battles over President Donald Trump’s executive order to end birthright citizenship continue to unfold. On July 10, 2025, a New Hampshire federal district judge issued a preliminary injunction. This order will, if it is not reversed, prevent federal officials from enforcing the order across the nation. The ruling came from U.S. District Judge Joseph Laplante, an appointee of George W. Bush. He stated that this policy, which he called of “highly questionable constitutionality,” causes “irreparable harm” (theconversation.com).

The judge’s decision offers a temporary reprieve for countless families. This ruling follows a wave of concern and fear from people nationwide. Many worried about how the order would affect them, with some even considering changing where they would deliver their babies (nhpr.org). The American Civil Liberties Union (ACLU) of New Hampshire praised the court’s decision. They called it a strong affirmation of the 14th Amendment. The ACLU emphasized that U.S. citizenship is a right by birth, not a political privilege (aclu.org).

Understanding Key Legal Concepts

To fully grasp the ongoing legal struggle, it is important to understand several key terms. Birthright citizenship is the principle that anyone born within a country’s geographical borders is automatically granted citizenship of that country. In the United States, this fundamental principle is rooted in the 14th Amendment to the Constitution (americanprogress.org). President Donald Trump’s executive order, titled “Protecting the Meaning and Value of American Citizenship,” attempted to change this long-standing interpretation. It sought to deny birthright citizenship to certain individuals born in the United States to specific categories of non-citizen parents (americanprogress.org).

Furthermore, a preliminary injunction is a temporary court order issued early in a lawsuit. It either prevents a party from taking a specific action or requires them to take one, pending the outcome of a full trial (americanprogress.org). Its main purpose is to maintain the current situation and prevent irreversible harm before a final decision is reached. This is distinct from a universal injunction, which is a court order that stops the government from enforcing a law or policy against anyone, regardless of whether they were part of the lawsuit. A class action lawsuit, conversely, is a legal process where one or more individuals sue on behalf of a larger group of people who have similar claims (asianlawcaucus.org). While a universal injunction provides broad, nationwide relief, a class action’s relief is typically limited to the certified class members.

The phrase “subject to the jurisdiction thereof” in the 14th Amendment’s Citizenship Clause is central to this debate. Traditionally, this phrase has meant that anyone born in the U.S. is a citizen, unless they are under the authority of a foreign power, such as children of foreign diplomats. However, the Trump administration’s interpretation argued that children born in the U.S. to parents who are not U.S. citizens or lawful permanent residents are not “subject to the jurisdiction” of the U.S. in the same way, and therefore, should not automatically receive citizenship (everycrsreport.com). Legal standing, or locus standi, is another critical concept. It refers to a party’s ability to show the court a sufficient connection to, and harm from, the challenged law or action to justify their participation in the case. Without standing, a court cannot hear a case (phillipslytle.com). Finally, class certification is a court’s decision to allow a lawsuit to proceed as a class action. This means a group of individuals with similar claims can be represented by a few named plaintiffs. This certification defines the class, ensuring all members share common legal or factual issues, and it significantly expands the scope of legal protection.

The Supreme Court’s Pivotal Ruling

The Supreme Court’s decision on June 27, 2025, in Trump v. CASA, significantly changed the landscape for legal challenges to executive orders. This ruling limited the ability of lower courts to issue universal injunctions (theconversation.com). The Court stated that universal injunctions “likely exceed the equitable authority that Congress has given to federal courts” (aila.org). This decision meant that previous federal court blocks on Trump’s order were paused. The Court ruled that injunctions needed review to ensure relief was granted only to parties specifically named in suits with standing (theconversation.com).

Consequently, the Supreme Court’s ruling meant that the Trump administration’s executive order could have gone into effect in New Hampshire and 27 other states starting July 27. These states were not part of the original lawsuits that had secured injunctions (nhpr.org). However, Judge Laplante found a way around this limitation. He circumvented the Supreme Court’s restriction on universal injunctions by certifying the New Hampshire case as a class action lawsuit (theconversation.com). This class action status means the order applies nationwide to babies born to undocumented immigrants and people in the U.S. with temporary status (nhpr.org). The plaintiffs in the New Hampshire case initially sought to include both affected children and their parents in the class. However, Judge Laplante limited class certification to the children (courthousenews.com).

Trump’s Executive Order: A Direct Challenge

President Trump’s executive order aims to deny federal identification documents, such as Social Security cards and passports, to infants born in the U.S. This denial would apply unless at least one parent is a U.S. citizen or a lawful permanent resident (theconversation.com). This order would affect infants born to people legally in the U.S. on work, tourist, or student visas, as well as to undocumented individuals. Critics argue that this order violates the long-standing interpretation of the 14th Amendment. The Amendment clearly states that people “born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens” (courthousenews.com).

The Trump administration, however, claims that undocumented or temporary U.S. residents are not fully “subject to the jurisdiction” of the country. They use this argument to justify denying citizenship to their children (courthousenews.com). This interpretation directly challenges over a century of legal precedent and understanding of the 14th Amendment. The executive order specifically provides that the protections of the Citizenship Clause would not apply to certain individuals born in the United States to specified categories of non-citizen parents (everycrsreport.com). This move represents a significant departure from established constitutional law and has sparked widespread legal and social concern.

The Looming Threat of Statelessness and Chaos

If the nationwide injunction is overturned, the executive order could lead to significant administrative chaos and potentially render some U.S.-born infants stateless. If the injunction does not hold, the order could go into effect in up to 28 states. These are states where attorneys general have not challenged the policy, or where individuals or groups have not secured relief (theconversation.com). Such fragmented implementation would create immense confusion for states trying to determine the citizenship status of infants born within their borders. This situation could lead to the first instances since the 1860s of infants born in the U.S. being categorically denied citizenship (theconversation.com).

Moreover, if implemented, birth certificates issued by local hospitals would no longer be sufficient evidence of eligibility for federal government documents acknowledging citizenship. This would require new efforts, including identifying parents’ citizenship status, before authorizing the issuance of any federal document (theconversation.com). The consequences could be dire. Statelessness refers to the condition of an individual not being recognized as a citizen by any country under the operation of its law. This can lead to severe consequences, as stateless individuals often lack basic rights and access to essential services. These services include healthcare, education, and legal protection, making them vulnerable and marginalized. Many U.S.-born individuals could be denied government benefits, Social Security numbers, and the ability to work legally in the U.S. (theconversation.com).

States Divided: Resistance and Collaboration

States are expected to respond differently to the potential implementation of the executive order. Some will resist, while others will collaborate. Several states have already filed lawsuits to block the birthright citizenship order (theconversation.com). Prior to the CASA decision, 22 states successfully sued the federal government over the executive order, effectively blocking its implementation in those states (phillipslytle.com). It is likely that these same states will mount new challenges to the Executive Order following the Supreme Court’s guidance. Successful litigation by states could bar implementation in up to 18 states and the District of Columbia if injunctions are narrowly framed. Alternatively, it could be blocked nationally if judges are persuaded that disentangling effects on a state-by-state basis is too difficult (theconversation.com).

However, other states are likely to collaborate with the administration to deny citizenship to some infants (theconversation.com). Some, like Texas, have previously attempted to make it difficult for undocumented parents to obtain birth certificates for their children (theconversation.com). This fragmented implementation, if it goes into effect, would create significant disparities and potential discrimination. Justice Sonia Sotomayor warned in her Trump v. CASA dissent that the order would operate in some places and toward some individuals while being legally blocked in others (theconversation.com). Children born to plaintiffs who successfully sued would have access to citizenship, while other children born in the same hospitals but not part of the suits would not. Babies born days apart could have substantially different rights. Parents’ ethnicity and countries of origin would likely influence which infants are ultimately granted or denied citizenship. Hispanics, women giving birth near the border, and women in states like Florida would be more likely to face scrutiny (theconversation.com).

Impact on the African Diaspora and Civil Rights

The ongoing legal battle over birthright citizenship carries profound implications for civil rights and equality in the United States, particularly for communities of color, including the African Diaspora. The 14th Amendment, which guarantees birthright citizenship, was ratified in the wake of the Civil War. It was specifically designed to ensure that formerly enslaved people and their descendants were recognized as full citizens, overturning the discriminatory Dred Scott decision. Therefore, any attempt to reinterpret or weaken this amendment directly threatens the foundational principles of equality and citizenship that Black Americans fought so hard to secure.

Policies that create fragmented citizenship or deny rights based on parental status, ethnicity, or origin disproportionately affect marginalized communities. The potential for increased scrutiny based on ethnicity, as highlighted by Justice Sotomayor, echoes historical patterns of discrimination against Black and brown bodies in America. For members of the African Diaspora, many of whom have faced historical and ongoing struggles for recognition and belonging, the idea of U.S.-born children being denied citizenship is deeply troubling. It raises concerns about a return to a two-tiered system of citizenship, where some are inherently more “American” than others based on their lineage or circumstances. The fight to uphold birthright citizenship is not merely a legal debate; it is a continuation of the long struggle for civil rights, ensuring that the promise of equality extends to all born on American soil, regardless of their parents’ background.

ABOUT THE AUTHOR

Darius Spearman has been a professor of Black Studies at San Diego City College since 2007. He is the author of several books, including Between The Color Lines: A History of African Americans on the California Frontier Through 1890. You can visit Darius online at africanelements.org.