U.S. Supreme Court to Review the Administration’s Birthright Citizenship Order

On Dec. 5, 2025, the U.S. Supreme Court has agreed to review the legality of the Administration’s Birthright Citizenship Executive Order, issued on January 20, 2025.  Birthright Citizenship is currently guaranteed under the Fourteenth Amendment, and provides that persons born on U.S. soil are, with very limited exceptions[1], U.S. citizens.

The Birthright Citizenship Executive Order was signed as a “Day One” Executive Order on Jan. 20, 2025, as part of the Administration’s stated efforts to “protect the meaning and value of American citizenship.”  The EO would prohibit conferring U.S. citizenship to children born on U.S. soil, whose mother is either unlawfully present in the U.S. or in the U.S. lawfully but in temporary status, and whose father is neither a U.S. Citizen nor a lawful permanent resident at the time of the child’s birth. In short, under the EO, a child born on U.S. soil must have at least one parent who is a U.S. Citizen or lawful permanent resident to be granted U.S. Citizenship at birth.  Children born in the U.S. to parents without lawful status or those with lawful statuses including H-1B, TN, F-1, etc. would no longer automatically be U.S. citizens.  The EO would also impact children born through Artificial Reproductive Technologies (ART), as the definition of mother/father is limited to immediate biological progenitors.

The new policy was to take effect as of Feb. 20, 2025, but implementation has been enjoined since Jan. 23, 2025, after multiple lawsuits were brought to court. While the Supreme Court previously reviewed, and ruled against, the legality of nationwide (or “universal”) injunctions issued by federal courts, the Court has agreed to review the legality of the Executive Order, under the U.S. Constitution and the Fourteenth Amendment, and subsequent Wong Kim Ark[2] decision that “affirm[ed] the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”

While an exact date has not yet been scheduled, the Court has indicated that it would fast-track review and could hear oral arguments as early as Spring 2026, for a decision by the time it goes to recess (late June/early July 2026). 

[1] Exception is made for children of certain Foreign Diplomatic staff, which, while born on U.S. soil, are not subject to U.S. jurisdiction.

[2] United States w. Wong Kim Ark, 169 U.S. 649 (1898).

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