The U.S. Supreme Court on Friday agreed to take up the legality of President Donald Trump’s executive order seeking to end birthright citizenship for children born to undocumented immigrant parents, an issue closely watched in the education community.
The justices granted the administration’s request in Trump v. Barbara to consider whether the president’s Jan. 20 order complies with the citizenship clause of the 14th Amendment, which says, “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.”
A federal district judge in New Hampshire in July issued a preliminary injunction blocking the order as to a specified class of plaintiffs, holding that the order likely “contradicts the text of the 14th Amendment and the century-old untouched precedent that interprets it.”
That Supreme Court precedent is United States v. Wong Kim Ark, an 1898 decision in which the court held that a child born to Chinese parents in the United States was a citizen even though his parents were “subjects of the Emperor of China” and were ineligible for U.S. citizenship themselves.
Some federal courts initially blocked the order by issuing so-called nationwide injunctions, but the Supreme Court, in a June decision stemming from one of those cases, sharply limited the authority of federal district judges to issue such sweeping relief. The justices did not weigh in on the legal merits of the executive order itself in that decision, Trump v. CASA Inc.
Challengers soon filed new cases taking advantage of some wiggle room the justices offered in the CASA decision for plaintiffs to file more traditional class actions to protect large groups of similarly situated people.
In the New Hampshire case, U.S. District Judge Joseph N. Laplante, an appointee of President George W. Bush, certified a nationwide class action as to babies born after Feb. 20, 2025, which was the original effective date of the executive order, though it has not yet been enforced. In issuing the preliminary injunction, the judge cited the “destabilizing effects of the loss of citizenship” they would face.
U.S. Solicitor General D. John Sauer appealed directly to the Supreme Court, arguing that while the 14th Amendment’s citizenship clause “put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States” (quoting the Wong Kim Ark decision), the clause does not “grant citizenship to the children of temporary visitors or illegal aliens.”
“The mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law” has become pervasive, Sauer said, “with destructive consequences.”
“Near-automatic citizenship has spawned an industry of modern ‘birth tourism,’ by which foreigners travel to the United States solely for the purpose of giving birth here and obtaining citizenship for their children,” the solicitor general said.
The lower court’s decision “invalidated a policy of prime importance to the president and his administration in a manner that undermines our border security,” Sauer said.
The American Civil Liberties Union and the NAACP Legal Defense and Educational Fund represent the class of young babies challenging the executive order, and they unsuccessfully urged the court not to take up the Trump administration’s request for review.
“The order is squarely contrary to the constitutional text, this court’s precedents, Congress’s dictates, longstanding executive branch practice, scholarly consensus, and well over a century of our nation’s everyday practice,” the civil rights groups said in a brief, adding that the administration’s “case amounts to little more than a jumble of historical misstatements, … newly manufactured doctrines, and—more than anything else—policy preferences.”
Schools are already feeling the effects of stepped-up immigration enforcement
While the Trump executive order does not directly implicate schools, it could affect the education community in several ways. For one, the administration’s aggressive immigration enforcement polices have been widely felt in the schools.
For another, enforcing the order may depress school enrollment of undocumented immigrant children, even though another Supreme Court decision, 1982’s Plyler v. Doe, essentially requires states to provide free schooling to students regardless of immigration status.
“Policies hostile to immigrants deter parents from sending their children to school due to fear of deportation or other concern for their families,” said a friend-of-the-court brief by a group of local government leaders (including some school board members) filed last spring in the Trump v. CASA case. “When that happens, schools lose attendance-based federal funding.”
The Supreme Court took no action Friday in a companion case involving a challenge to the birthright citizenship order by the states of Arizona, Illinois, Oregon, and Washington. The solicitor general had asked the high court to review preliminary relief granted to those states by two lower courts.
The court will presumably will hear arguments in the class action case from New Hampshire in the spring and issue a decision by late June.
