Tag Archive for: Casa v. Trump

Cyrus D. Mehta & Damira Zhanatova

A Maryland Court Blocks Trump’s Latest End-Run Around Birthright Citizenship

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As we discussed in our previous blog, the Trump administration’s August 6, 2026 executive orders were not genuine efforts to comply with the Supreme Court’s decision in Trump v. Barbara. They were an attempt to keep attacking birthright citizenship by changing the labels. The U.S. District Court for the District of Maryland in  Casa v. Trump confirms exactly that. On September 2, 2026, Judge Deborah Boardman held that the administration’s 2026 executive order is “almost certainly unconstitutional” as applied to the certified class and entered a preliminary injunction blocking its enforcement against those children.

The 2026 order identifies several categories of persons it asserts are not covered by birthright citizenship, including those with a parent who is an “alien enemy,” such as a member of a designated Foreign Terrorist Organization or a Specially Designated Global Terrorist; those with a parent who is a foreign government employee, including ambassadors, certain embassy or consular employees, officials of foreign governments, or employees of international organizations with immunity; those whose parent engaged in a commercial transaction or fraudulent activity to obtain or access birthright citizenship, including arrangements to ensure that the mother or a surrogate is present in the United States or a U.S. territory to give birth; and those born in a U.S. territory or territorial waters where citizenship is not conferred by federal statute.

In Trump v. Barbara, the U.S. Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present here are citizens at birth under the Fourteenth Amendment. The Maryland court emphasized that the Supreme Court had already decided that children in the identical certified class “satisfy both elements of the Citizenship Clause: they are ‘born . . . in the United States’ and ‘subject to the jurisdiction thereof,’” and therefore “are citizens at birth”. That should have ended the matter. Instead, the administration issued a new executive order purporting to identify categories of U.S.-born children who supposedly fall outside the rule announced in Barbara. Judge Boardman correctly recognized that these new carveouts “bear little to no resemblance to the ‘narrow exceptions’ to the rule of citizenship by birth recognized by the Supreme Court in Barbara” and concluded that “[t]he 2026 Executive Order is almost certainly unconstitutional as applied to the certified class”.

The plaintiffs feared, for instance, that they could be deprived of citizenship under the 2026 executive order if their parents were rightly or wrongly  be labeled an “alien enemy,” and the child could therefore be denied citizenship, “even though they do not fall within a recognized exception to birthright citizenship.”  The court cited the example of a parent who could be characterized as an alien enemy because of their tattoos. The plaintiffs further suggested that they could be  denied citizenship under the birthright tourism clause of the executive order because their mother bought a plane ticket to come to the United States, where she then gave birth, and this  might constitute a  “commercial transaction” that falls within the second executive order’s sweep.

The opinion is especially compelling because it treats the case as one about fidelity to Supreme Court precedent, not creative relitigation. Judge Boardman put it: “The Supreme Court has spoken: Children in the certified class are ‘citizens at birth.’” She then added the line that should end the administration’s latest maneuver: “Barbara is the law of the land. The President must follow it”. Once the Supreme Court has declared that these children are citizens at birth, the Executive Branch cannot order agencies to deny or refuse to recognize that citizenship.

That matters in practical terms because these orders are not abstract. They direct agencies to act. Executive Order 14160 instructed federal agencies that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” for certain U.S.-born children. And when agencies act on an unconstitutional citizenship theory, the harm is immediate. Judge Boardman explained that citizenship is a “most precious right,” and that the threatened denial of citizenship causes irreparable harm because citizenship is “the right to have rights – to freely participate in our political community”.

The “birth tourism” provision is no more valid than the administration’s other carveouts. The 2026 executive order purported to deny citizenship where either parent engaged in a “commercial transaction to purchase or access birthright citizenship,” including commercial arrangements to ensure that the mother, or a surrogate, is present in the United States to give birth. But that theory still collides with Barbara. Whatever one thinks about a parent’s reason for coming to the United States, Barbara does not permit a motive-based exception to birthright citizenship. The Supreme Court’s rule did not turn on whether a parent came temporarily, paid for travel, or had a suspect motive for entering the United States. The Supreme Court held that children born to parents who are unlawfully or temporarily present in the United States are citizens at birth. Congress used the same rule in 8 U.S.C. § 1401(a), which provides that persons “born in the United States, and subject to the jurisdiction thereof,” “shall be nationals and citizens of the United States at birth”. In other words, even if the government characterizes a parent’s trip as “birth tourism,” the child’s citizenship still turns on the child’s birth in the United States and subjection to U.S. jurisdiction. Judge Boardman therefore refused to let the government evade Barbara by repackaging disapproval of parental motive into a new exception to citizenship.

Judge Boardman’s opinion recognizes that the case is about preserving the citizenship of children the Supreme Court has already declared to be citizens. The administration cannot use a new executive order to do indirectly what Barbara forbids directly. As Judge Boardman explained, the relevant question was whether the plaintiffs were entitled to preliminary relief because the order was likely unconstitutional as applied to the certified class, and “[t]he answer to that question is yes”.

The same rule of birthright citizenship appears not only in the Fourteenth Amendment but also in 8 U.S.C. § 1401(a). That statute does not empower the President to create new disfavored subclasses of U.S.-born children. To the contrary, it codifies the ordinary rule of citizenship at birth for those born in the United States and subject to its jurisdiction. That is why the administration’s renewed effort collides not just with the Constitution and Supreme Court precedent, but also with Congress’s own enacted citizenship rule.

The Constitution does not permit the President to sort U.S.-born children into favored and disfavored categories based on their parents’ immigration status, alleged affiliations, motives for travel, or manner of entry. Barbara rejected that project, and Judge Boardman’s injunction makes clear that the administration cannot revive it by administrative ingenuity. Birthright citizenship remains what it has long been: a constitutional and statutory guarantee, not a presidential favor.

But Trump’s attack on birthright citizenship is unrelenting. An interim final rule dated September 4, 2026 implements the foreign-government-employee portion of the 2026 Executive Order by defining “foreign government employee” to include ambassadors, certain embassy or consular employees, persons employed by a foreign government in an official capacity, and persons employed by an international organization that possesses international-organization immunity. That definition is broader than the narrow birthright-citizenship exception traditionally associated with foreign diplomatic officers, and it may sweep in people whose roles are far removed from the classic ambassadorial or diplomatic function, such as a janitor employed by the United Nations or an administrative assistant working in a consular mission.

Fortunately, the administration concedes that the interim final rule will not take effect so long as the injunction in Casa v. Trump remains in place. But that is cold comfort. Trump’s assault on birthright citizenship persists, and he will keep trying to chip away at it with impunity despite Trump v. Barbara. The courts must continue to hold the line, because citizenship by birth is a constitutional guarantee, not a privilege the President may narrow by executive fiat against children born to parents in the United States he does not like.

Cyrus Mehta

Supreme Court Decision Limits Nationwide Injunctions Giving More Power to Trump to Violate the Constitution

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On June 27, 2025, in a case implicating President Trump’s Executive Order (EO) on birthright citizenship, the U.S. Supreme Court issued a decision limiting federal courts’ ability to issue nationwide injunctions blocking EOs and broad national policies. It explained that in such cases, courts should normally only block federal policies for the individuals or organizations that bring a lawsuit, unless a statute or class action process allows broader relief. This ruling makes it less likely that a single lawsuit will be able to stop a federal policy from taking effect across the entire country.

The Supreme Court’s order incorporates a change to the effective date of the EO, which was agreed to by the government. The Court stated that the EO does not apply to children born since January 20, 2025, and for 30 additional days after the order. Under the decision, all children born in the United States before July 28, 2025, regardless of their parents’ immigration status, will be recognized as U.S. citizens by the executive branch of the federal government. 

Justice Barrett, who wrote for the majority acknowledged, arguments that “the universal injunction ‘give[s] the Judiciary a powerful tool to check the Executive Branch.’ But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them,” she emphasized. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” The justices held along ideological lines that the Judiciary Act of 1798 does not authorize federal district court judges to issue sweeping injunctions that stop the government from enforcing a policy throughout the country. 

Justice Sonia Sotomayor dissented, in an opinion that she read from the bench, which signaled her strong disagreement with the majority’s ruling. She stated that the majority had ruled that, “absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

The decision did not address the merits or constitutionality of the EO, and we have discussed previously that the EO is probably unconstitutional and we hope that the Supreme Court will agree  when it rules on the merits. There will be continuing and evolving uncertainties, including legal challenges to the birthright citizenship order in the federal courts. For example, filed within hours of the decision, a lawsuit in New Hampshire seeks to designate a nationwide class of children needing protection from the EO. The nonprofit plaintiff organization, Casa Inc., also moved swiftly to modify their challenges into a class action. Indeed, the majority order that deemed nationwide injunctions a “shortcut to relief that benefits parties and nonparties alike” did not preclude federal courts from providing relief through class actions.    Meanwhile, at a press conference on June 27, 2025, President Trump announced that the administration plans to take additional actions to end birthright citizenship. These efforts will likely take the form of new agency rules, policies, and guidance aimed at implementing the EO.

If there is any issue that cries out in favor of the universal injunction it is for a court to protect a newborn from a blatantly unconstitutional executive order which the Supreme Court majority sadly failed to do. First it was outrageous that the Supreme Court used this case to demolish the notion of the universal injunction involving such a blatantly unconstitutional executive order. Steve Vladeck  states that class actions are more difficult to bring and are also subject to interlocutory appeals whether the court appropriately certified the class. Even though Justice Barrett held that prohibiting enforcement of the order against the child of a pregnant plaintiff would give that plaintiff complete relief, and extending the injunction to all similarly situated individuals will not render the relief more complete, this limitation on complete relief should not apply to a state plaintiff.  And if a state asks for complete relief and gets it from a district court then this too will be appealed to the Supreme Court, and there is a risk that a state would only be given relief for those who reside in the state. This could result in disastrous disparities in a birthright citizen case, as a child who is born in New Jersey and recognized as a citizen but who later moves to Texas would not be recognized as a citizen in that state.

The cumbersome class action is no substitute for a court to quickly block a blatantly unconstitutional executive order under universal jurisdiction. What if there was an EO prohibiting members of a religion from openly worshiping? A court should be able to quickly block it under universal jurisdiction.

What if Trump issues an EO demanding that all his opponents be shipped to a prison in El Salvador? If one such well-heeled opponent goes to court and gets an order it will only benefit her, and each opponent will have to obtain a similar order as Trump can otherwise keep on enforcing his unconstitutional actions.

Parents in H-1B/H-4 nonimmigrant visa status of a newborn in states that did not challenge the birthright citizenship EO will have to individually sue or join class actions to ensure that their child is recognized as a US citizen, or they are welcome to come to a state like New York or Massachusetts to give birth to their child. But how cruel to force the mother to travel when she is already in labor!

The Supreme Court’s order allows Trump to deny people rights that are embedded in the Constitution so long as they have not found a lawyer or asked a court to protect their rights, and even when they do, they may not succeed in that court. It aligns Trump’s America to an autocratic state, or worse, to a fascist regime.

 We also fear that ICE could start deporting plaintiffs and even newborns if they are here unlawfully before they get a favorable court order. The executive order applies not only to children of two undocumented parents, but also to the U.S. born children of parents who hold a valid nonimmigrant status, such as H-1B and H-4. How will a child as soon as it is born acquire H-4 status? One needs to be admitted into the US in H-4 status or change from another nonimmigrant status into H-4 status. Perhaps, the Trump administration may need to issue a regulation recognizing H-4 status of the child at the time of its birth.    As we noted in a prior blog, the best chance for Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs to obtain permanent residence without waiting for several decades could be sponsorship by a U.S.-born adult child. Parents of children born after the effective date of the executive order may no longer have this opportunity. The executive order will cruelly create a permanent underclass of noncitizens if they are unable to challenge it individually or in a class action. The child in H-4 status would have to leave the US when it turns 21 unless it finds a way to change to another nonimmigrant status or obtain permanent residence independently such as through marriage with a U.S. citizen. 

People have rightly observed that the nationwide injunction has also benefitted Republican controlled states that are against pro-immigration policies such as the successful thwarting of DACA by Judge Hanen in a federal district court in  Texas who held that DACA was unlawful and issued a nationwide injunction.  On the other hand, even though Judge Hanen ruled DACA to be unlawful, his ruling has been appealed, and DACA still benefits its recipients in allowing them to extend their work permits since June 2012. Even if the Supreme Court ultimately agrees with Judge Hanen, there is a possibility that Congress can step in and provide a path for citizenship to DACA recipients.  If a policy is challenged in a legal action, the government that issued it can still defend it and Congress can also step in.  By contrast, without the benefit of a nationwide injunction, a blatantly unconstitutional executive order can continue to stand and adversely impact people, even newborn children.