SCOTUS Won’t Address Trump’s ‘Birthright Citizenship’ Order — For Now
The U.S. Supreme Court declined on Monday to take immediate action on several major challenges to President Donald Trump’s Jan. 20 executive order targeting the long-controversial practice of birthright citizenship — a policy that, for decades, has automatically conferred citizenship on nearly every child born on American soil. The justices will revisit the cases during their closed-door conference on Friday, Dec. 5, with the possibility of announcing later that day whether the Court will finally step in.
The Court’s decision to “relist” the petition — a procedural move signaling the cases will be reconsidered at a subsequent conference — is not unusual. Relists often occur when justices want more time to study a case or when one member of the Court attempts to secure the fourth vote needed to grant review. Multiple relists can also signal that the Court is weighing a summary reversal or that a justice is writing an opinion related to a denial of review.
But in the birthright-citizenship disputes, SCOTUSBlog suggested Monday that something more may be unfolding.
“Since 2014, the court has generally granted review only after it has relisted a case at least once,” the outlet reported. “The court has never officially acknowledged this practice or provided any explanation for it, but the conventional wisdom is that the court uses the extra time provided by a relist to make sure that the case is a suitable one for its review.
“If that’s true here, as noted above, the court could announce as soon as Friday, Dec. 5, that it will hear the birthright citizenship cases on the merits. The cases would likely then be set for oral arguments in early 2026, with a decision to follow by late June or early July,” SCOTUSBlog noted.
President Trump’s executive order — which remains blocked — would end the presumption of automatic citizenship for individuals born in the United States when their parents are in the country unlawfully or on a temporary basis. Predictably, left-wing legal groups launched a series of lawsuits challenging the order, and multiple federal judges issued nationwide injunctions that prevented the administration from enforcing the policy.
Earlier this year, the Trump administration asked the Supreme Court to address not the merits of birthright citizenship itself, but the legality of sweeping “universal” injunctions that federal district judges have increasingly used to halt executive policies nationwide. When the Court ruled in late June that such broad injunctions are generally impermissible, the litigation returned to the lower courts — which again sided with the challengers, keeping the policy frozen.
The administration returned to the justices in September, urging them to review two new rulings. In Barbara v. Trump, a federal judge in New Hampshire issued a preliminary injunction blocking enforcement of the executive order against a class of infants born on or after Feb. 20, 2025 — the very group President Trump’s policy is designed to address.
In its new petition, the administration argues that the 14th Amendment’s Citizenship Clause was “adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens.”
Opponents claim that the Supreme Court’s 1898 Wong Kim Ark decision controls the outcome, pointing out that Congress effectively cemented that interpretation with nationality laws passed in 1940 and again in 1952. But the Trump administration counters that Wong Kim Ark addressed a child born to lawful, permanent residents — not individuals residing in the United States illegally or temporarily.
Challengers argue that President Trump’s order contradicts the Constitution as interpreted in Wong Kim Ark and violates existing federal statutes, SCOTUSBlog reported.
With the Court now signaling renewed interest, the nation may finally be headed toward a definitive ruling on one of the most consequential constitutional questions of the modern immigration era.