After three separate federal courts issued nationwide injunctions preventing the federal government from enforcing or implementing the Trump administration’s January 20, 2025 Executive Order (“EO”) entitled Protecting the Meaning and Value of American Citizenship, the continuing litigation involving this EO has now reached the United States Supreme Court. This EO, which we reported on in our Alert of January 21, denies United States citizenship to persons born in the United States on or after February 19, 2025, whose parents were either not in lawful immigration status or held lawful nonimmigrant status at the time of the person’s birth.
On March 13, 2025, the Trump administration filed a series of emergency motions with the Supreme Court, asking that the administration be permitted to enforce the EO. In three nearly identical filings, Acting United States Solicitor General Sarah Harris asked the Court to block on a partial basis the preliminary injunctions issued by federal district judges in Washington, Maryland, and Massachusetts, that enjoin on a nationwide basis the implementation of the EO.
The emergency motions do not ask the Court to rule on the constitutionality of the EO. Rather, they request that the district judges’ injunctions be limited to the named individual plaintiffs in the three cases, the members of the various groups challenging the order who are named in the complaints, and the residents of the states that the court agrees have a legal right to challenge the order. Failing this, the motions ask that the federal government be allowed to take “internal steps to implement” the EO while the litigation continues, even if the EO cannot yet be enforced.
The Court has not rejected the motions filed by the Trump administration but has asked that responses to them be filed by April 4, 2025. This suggests that the Court believes that the motions have at least some merit, although a wholesale granting of all the relief requested in the motions is unlikely. It is highly improbable, for example, that the Court will allow the EO to be implemented in certain states but not others. A ruling of that type would create a patchwork where children born to undocumented or nonimmigrant parents in certain states would be afforded United States citizenship, but similarly-situated children born in other states would not become U.S. citizens. Members of the Court have in the past expressed skepticism about nationwide injunctions issued by federal district courts, however, and it is possible that this will influence the Court’s ruling.
Litigation involving the legality of the birthright citizenship EO continues to be at an early stage and there will be further developments involving this EO in the coming weeks and months. We will continue to monitor these closely and provide updates as events occur, especially if the most recent emergency motions filed by the Trump administration are granted in whole or in part.
