The U.S. Supreme Court closely questioned lawyers on both sides during oral arguments on April 1 over President Donald Trump’s 2025 executive order that attempts to restrict birthright citizenship.
Most court watchers believe justices are likely to rule against the administration. But no decision is ever guaranteed. The court could also take a narrower route that preserves options for administration officials and backers who support a hardline stance on immigration. Or they could defy expectations and uphold Trump altogether.
Whatever the court decides, immigration lawyers and their clients are closely watching the case. As one immigration-focused law firm recently wrote, “a win for the government would mean a massive overhaul of our current immigration system and could subject young U.S.-born children to deportation, often to countries they have never known.”
Here’s what the court may do and the potential impact a decision could have for immigration counsel and their clients.
Trump’s Executive Order
The first section of the 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Ratified in the wake of the Civil War to extend full citizenship and constitutional rights to former slaves, the amendment has long been interpreted by the government to extend citizenship to any person born in the United States.
The U.S. Supreme Court affirmed birthright citizenship in 1898’s U.S. v. Wong Kim Ark. And Congress, in 1940 and 1952, enacted and reenacted statutes that echoed the 14th Amendment. The law, the Immigration and Nationality Act (INA), states that people “born in the United States, and subject to the jurisdiction thereof” shall be “nationals and citizens of the United States at birth.”
On Jan. 20, 2025, the day he returned to the White House, Trump issued Executive Order 1460. In it, he asserted that “the privilege of United States citizenship does not automatically extend” to children born to mothers “unlawfully present in the United States” and to fathers who were not U.S. citizens or “lawful permanent resident[s] at the time of said person’s birth.” Nor would citizenship extend to a baby “when that person’s mother’s presence in the United States…was lawful but temporary” and the father was not a citizen or lawful permanent resident.
The order applied to children born after Feb. 20, 2025, and barred the federal government from issuing documents recognizing U.S. citizenship or accepting documents issued by state, local, or other governments or authorities “purporting to recognize United States citizenship.”
The Case Before the Court
Advocacy groups immediately sued, and three federal courts issued nationwide injunctions blocking enforcement of the order. The administration took those cases to the Supreme Court, which restricted the authority of lower-court judges to issue nationwide injunctions in Trump v. Casa.
A narrower ruling by a U.S. district court in New Hampshire, however, also enjoined enforcement. The case was a class action against Trump and the administration filed on behalf of several children (using pseudonyms to protect their identities). In December, before a final judgment by the district court or review by the federal appellate circuits, the Supreme Court accepted the case for review.
In Trump v. Barbara, the American Civil Liberties Union and other advocates argue that Trump’s executive order violates the 14th Amendment and the INA. The Trump administration retorts that birthright citizenship requires parents to have a legal domicile and a recognized status as a citizen or permanent resident of the United States.
The Court’s Options
In the wake of oral arguments on April 1, the high court is likely to select one of three options for its decision. It may:
1. Leave Birthright Citizenship as Is. The court could issue a broad decision that rejects Trump’s executive order out of hand. The decision could uphold Wong Kim Ark and find that the order conflicts with the 14th Amendment and the INA.
How likely is this? The administration faced skeptical questions from the justices during oral arguments, particularly from Chief Justice John Roberts. Roberts called arguments about limiting who qualifies for birthright citizenship “quirky” and, as Reuters noted, “challenged [the administration’s lawyer] to provide evidence for the administration’s stated concern over ‘birth tourism.’”
Potential Impact: For immigration counsel, upholding birthright citizenship would preserve the current baseline for their clients. Children born in the United States would remain citizens at birth, except in a few narrow circumstances (such as the children of foreign diplomats or enemy occupiers). While they would still need to watch for continuing blowback from federal agencies over immigration questions, attorneys would not need to restructure their fundamental family or employment law strategies around U.S. citizenship.
2. Reject Trump’s Order on Narrower, Statutory Grounds. The court could also overturn Trump’s order but rely on the INA and avoid constitutional questions altogether. Along those lines, Justice Brett Kavanaugh directly asked why Congress chose to “repeat the same language” as the statute if it wanted to narrow birthright citizenship rules. “One might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be,” he said.
Potential Impact: In the short-term, immigration lawyers and their clients would see the same outcome as a broad rejection on constitutional grounds. Long-term, however, using the statute alone as a basis for a decision gives birthright citizenship foes more room to maneuver. It leaves the door open for legislative changes and potential constitutional litigation—and for immigration lawyers, it would create continuing uncertainty about the future of the law. Indeed, some advocates pointed to Kavanaugh’s questions about the 14th Amendment’s enforcement clause as a signal to legislators and future litigants about other, more effective ways to attack birthright citizenship.
3. Uphold Trump’s Order. Given the tenor of the questions during oral argument, most observers believe this is the least likely outcome. However, conservative justices Samuel Alito and Clarence Thomas both appeared sympathetic to the administration. And as legal commentator David Lat noted, several justices seemed taken with Trump administration arguments seeking to limit Wong Kim Ark’s scope to “domiciled” residents of the United States. That is, citizens and lawful permanent residents, rather than undocumented immigrants or temporary visitors.
“The administration’s argument got a fair amount of traction from the justices at oral argument,” Lat wrote. “The justices are giving serious thought to the administration’s position, not dismissing it out of hand—which is why I left the argument feeling that the government’s chances are better than I originally thought.”
Potential Impact: Leaving the order in place would be, of course, the most-disruptive result for immigration lawyers. Individuals and families in the United States on academic (F-1), specialty occupation worker (H-1B), intracompany transfer (L-1), and visas for business and tourism visits (B-1 and B-2) would be at risk of having children that were born in the United States treated as noncitizens at birth.
As Ogletree Deakins noted in a recent blog post, “If the constitutionality of the executive order is upheld, a U.S. birth certificate alone would no longer suffice as proof of citizenship. Parents would need to provide documentation of the mother’s lawful status or the father’s citizenship or permanent resident status.”
Continuing Fallout
Should the Supreme Court find for the Trump administration, federal officials have already drafted a plan to implement the executive order. Issued in July 2025 by U.S. Citizenship and Immigration Services (USCIS), the plan defines key terms from the executive order like “unlawfully present,” “lawful but temporary,” and “unlawful status” and would essentially make parental immigration status a part of the citizenship verification process for babies born in the United States.
Other agencies are relying on the plan to formulate their own policies should the executive order survive. The State Department, for instance, has drawn upon the plan for rules that would require officials to collect additional documents to prove immigration status as part of the passport process.
Even if the court strikes down the executive order, the legal fight—and particularly the court’s decision in the related Casa case—may have provided the administration with a key strategic victory. In a recent essay for The New York Times, Stephen Vladeck, a constitutional law expert and professor at Georgetown Law Center, wrote that the Casa decision has made it “much harder for lower federal courts to block lawless executive action.”
As a result, an “appellate void” has opened. This is “the very real possibility that the government will frustrate the normal appeals process by refusing to appeal district court losses in individual cases,” Vladeck wrote. “Thanks to the rise and fall of nationwide injunctions, that void became a serious concern only since Mr. Trump returned to office.”
What Clients Are Asking Right Now
The birthright citizenship case affects the lives of tens of thousands of immigrants, undocumented or otherwise. And immigration lawyers are juggling practical questions about the Supreme Court case and its impact. Here are a few of the key queries clients may be asking, as well answers they may be receiving from counsel (culled from a variety of law firm alerts to clients).
1. Does anything change right now? The answer from most counsel is “probably not.” The executive order remains blocked pending the Supreme Court’s decision, which is expected by the end of the current term on June 30.
2. How should I feel about the Supreme Court arguments? If the Trump administration, as Vladeck bluntly puts it, “is going to lose,” lawyers may be offering clients comfort—but only to a point. They also may need to prepare their clients for a narrower decision that leaves room for caution about the future.
3. Are babies born in the United States before the ruling still citizens? Because the executive order is blocked, the government is still recognizing birthright citizenship under existing rules unless and until the Supreme Court says otherwise.
4. Will children of parents here on temporary visas be affected? Immigration lawyers are watching the case closely, in part, because Trump’s executive order is not limited to undocumented immigrants. It also affects children of mothers who have “lawful but temporary” status and fathers who are not U.S. citizens or green-card holders. Law firm coverage has cited F-1, J-1, H-1, and L-1 visa holders, in particular, as vulnerable under the executive order.
5. What kind of documentation will my child need? If the administration wins, documentation requirements would increase substantially. A birth certificate would no longer suffice to prove citizenship. Agencies will likely look at parents’ immigration status as well. Parents would be well-advised to gather and keep their immigration records in order in the event the administration claims an outright victory or is allowed by the court to tighten rules within certain proscribed limits.
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David L. Brown is a legal affairs writer and consultant, who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms as senior content consultant.