A way out remains for birthright citizenship decision

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

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When the Justice Department asked the Supreme Court to consider the legality of President Donald Trump’s birthright citizenship executive order, it presented the justices with two cases in which the government had lost in the courts below. The justices’ decision to add one of these cases to its docket, but not the other, suggests that the road to an opinion that deals head-on with the constitutionality of the president’s directive isn’t clear. Though chances are still high that the court will decide whether Trump’s order is legal, it left open the possibility that it will instead focus on a technical procedural issue.

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Last September, Solicitor General D. John Sauer, the administration’s lead Supreme Court lawyer, asked the justices to agree to review two cases in which lower courts blocked the government from implementing Trump’s birthright citizenship executive order. In Washington v. Trump, a lawsuit brought by Washington, three other states, and several individuals, the U.S. Court of Appeals for the 9th Circuit held that the executive order violates the 14th Amendment’s citizenship clause and a section of the Immigration and Nationality Act, the federal law governing citizenship and immigration, that uses similar language. In doing so, the appellate court upheld a lower court’s injunction blocking the government from putting the executive order into effect anywhere in the United States.

In a separate case, Barbara v. Trump, the U.S. District Court for the District of New Hampshire also blocked the government from following the president’s directive in a lawsuit brought by a pregnant woman whose child would be denied U.S. citizenship, as well as two parents and their months-old children who would be denied citizenship. The Justice Department appealed the district court’s decision to the U.S. Court of Appeals for the 1st Circuit but the appellate court put the case on hold, without issuing any decisions about Trump’s executive order, after the government asked the justices to intervene.

This month, the court agreed to hear arguments in Barbara. It hasn’t announced whether it will grant the government’s request to decide Washington as well, but it is likely that the court will not act on Washington until after it issues a decision in the other case.

The court’s decision to add Barbara to its calendar, but not Washington, doesn’t affect the central issue that Sauer asked the justices to decide: whether the president’s executive order complies with the citizenship clause and the Immigration and Nationality Act. The lower courts in both cases found that the order violates both laws, so the justices can consider the order’s legality in either.

Despite sharing the same key legal question, differences between the two cases hint at a potential off-ramp that remains available to the justices. As a lawsuit in which states complain of harms that they would suffer if Trump were allowed to put his order into effect, Washington implicates a state’s legal right to sue – a legal principle called standing that the 9th Circuit addressed in detail. The appellate court found that the executive order’s interpretation of citizenship law would cost the states thousands of dollars annually for health care, foster care, and social security programs that the states run in part with federal funding that excludes people who do not have lawful immigration status or U.S. citizenship – thus enabling the states to sue.

State standing is not without controversy, however. Two years ago, the court curtailed a state’s standing to sue the federal government over immigration policy disputes. Rejecting a challenge by Texas and other states led by Republicans against the Biden administration’s immigration law enforcement priorities, the court explained, in United States v. Texas, that monetary costs alone aren’t enough to permit a state to sue the federal government. Courts must also have a “history and tradition” of resolving the harm that the states complain of. Had it added Washington to its docket, the court risked becoming entangled in the tricky question of whether there is any historical basis for courts to decide how denying U.S. citizenship to an individual harms a state.

Unlike Washington, Barbara is a class-action lawsuit in which a small number of people were permitted to sue on behalf of many more people who are not involved in the lawsuit but stand to be injured all the same. In Barbara the district court refused to allow parents to sue on their own behalf. The court did permit two months-old babies, both of whom are subject to Trump’s order, to sue on behalf of other children born on or after February 20, 2025, including children who have not yet been born. The Justice Department had argued that the district court should not permit these children to represent other children because, in the government’s view, a child’s citizenship depends on the domicile (permanent home) of their parents. For that reason, a child born to one set of parents can’t be treated identically to a child born to a different set of parents, according to the government. The district court disagreed, explaining “domicile has no bearing” on the legality of the president’s directive.

By accepting the Justice Department’s request to review Barbara, the court leaves open the possibility that it will focus on the requirements for class-action lawsuits that block government policies nationwide. The justices previewed their disagreement over class actions in June when the court announced that lower courts had blocked the birthright citizenship executive order using a power, called a universal injunction, that they don’t possess. Specifically, in Trump v. CASA, Justice Sonia Sotomayor, who dissented from the majority, commented that “in the rubble of the assault” on universal injunctions, the court had left intact class actions; that is, plaintiffs could still use such suits to try and prohibit the government from enforcing a law or policy throughout the country.

But Justice Samuel Alito, joined by Justice Clarence Thomas, cautioned federal courts against “[l]ax” application of the class-action requirements. And previewing what came to pass in Barbara, Justice Brett Kavanaugh encouraged his colleagues not to hesitate to become involved in cases in which a single district court imposes a nationwide block on presidential action “by granting or denying a preliminary injunction to a putative nationwide class.” Barbara now presents the court with an opportunity to revive this dispute.

Importantly, the solicitor general did not ask the Supreme Court to decide whether the children in Barbara should be allowed to represent everyone else who will be denied U.S. citizenship under the executive order. The lawyers representing the two babies also didn’t mention the class-action requirements in their brief asking the Supreme Court to avoid weighing in. That said, the justices could still ask the parties to address this issue in the written arguments that they will submit in the coming months.

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When the court last considered Trump’s birthright citizenship policy, in June, the six justices in the majority predicted that they would soon have an opportunity to consider the policy’s legality directly. Having agreed to review Barbara but not Washington, the justices are one step closer to deciding whether the president’s position violates the Constitution or the Immigration and Nationality Act, but it remains possible that they won’t get there. With Washington on hold, the court can’t sidestep deciding the executive order’s legality by focusing on whether the states have a right to sue. But Barbara presents the court with a potential off-ramp of its own – whether the children who are suing the president are suitable representatives for everyone who stands to be denied U.S. citizenship. So far neither the parties nor the justices have indicated a desire to take this off-ramp. We shall see if that changes.