Judge Blocks Trump's Narrower Birthright Citizenship Order, Citing June Supreme Court Ruling

Since the Supreme Court struck down Trump's original birthright citizenship order in June by a 6-3 vote in Barbara v. Trump, the administration went back to the drawing board. It didn't work. On September 2, U.S. District Judge Deborah Boardman blocked Trump's follow-up order too.

Trump signed the new executive order on August 6. It was narrower than his January 2025 attempt, which tried to deny citizenship broadly to children of undocumented or temporary immigrants. The August order instead targeted four specific groups: children of "alien enemies" (parents tied to a designated Foreign Terrorist Organization or Specially Designated Global Terrorist, a label the administration has applied to drug cartels), children of foreign government employees, children born through "birth tourism" (defined as a "commercial transaction" to give birth on U.S. soil), and, according to The Independent, newborns in U.S. territories.

Boardman, an appointee of President Biden sitting in Maryland, wasn't buying the distinction. In a 35-page ruling in CASA, Inc. v. Trump, she granted a preliminary injunction covering the certified class of plaintiffs. "The 2026 Executive Order is almost certainly unconstitutional as applied to the certified class for the simple reason that the Supreme Court in Barbara already decided that the children in the class are citizens at birth," she wrote. "This Court must, once again, preliminarily enjoin enforcement of the President's most recent attempt to strip the right to citizenship from them."

Last Friday she'd denied CASA's initial request to block it, but only on a technicality: the original complaint cited Trump's 2025 order, not the new August one. At the time she signaled where she was headed, telling the parties, "This is different," and calling the new order "unprecedented" compared to the first.

The Justice Department's argument leans on a specific reading of the June ruling. Government lawyers wrote in a filing that the Supreme Court only found children of undocumented or temporary immigrants "are not disqualified from birthright citizenship" but "never suggested that every child born to such parents is per se a citizen, with no exceptions." Attorney General Todd Blanche said on Fox News Wednesday evening that the ruling "is not something that is a surprise to us," adding, "We crafted the EO around, and in concurrence, and understanding what the Supreme Court said in their decision. And so we expected — we didn't expect this judge to say we were right." Blanche said the administration will "continue to fight" and go back to the Supreme Court if necessary.

CASA and the other plaintiffs argue the administration is trying to manufacture new carve-outs where none exist. Historically recognized exceptions to birthright citizenship are narrow, they argue, limited to children of diplomats and, in rare 19th-century cases, certain tribal situations where the U.S. had ceded jurisdiction to a foreign sovereign. Boardman's opinion echoed that framing, pointing to Barbara's language distinguishing people the U.S. has the power to govern from the handful it doesn't.

That's a defensible reading of the June opinion. The Justice Department is betting that classifying cartel-linked parents as "alien enemies" under a formal terrorist designation, or singling out a narrow "commercial transaction" birth-tourism scheme, is different in kind from the broad undocumented-immigrant category the Supreme Court already ruled on. Whether that distinction survives on appeal is genuinely unresolved. Boardman didn't spend much of her opinion engaging with the specific carve-outs the administration proposed. She leaned almost entirely on Barbara as controlling precedent.

Boardman's injunction applies only to the certified class of plaintiffs, and it doesn't stop federal agencies from continuing to prepare guidance for implementing the policy more broadly. The State Department, DHS, and Social Security Administration are barred from applying the new rule to the plaintiffs in this case, but the administration isn't barred from getting ready to apply it elsewhere once litigation resolves.

The Independent also flagged a wrinkle that could matter to a lot more families than the named plaintiffs: Trump's 2025 order specified it applied only to births 30 days after its effective date. His August order includes no such limit. Boardman wrote that "the only fair reading of the plain language" is that it applies retroactively to any child born after February 19, 2025, which she said puts thousands of children in legal limbo pending further litigation.

Separately, the House Judiciary Committee held a hearing Wednesday examining legislative responses to the Supreme Court's June ruling, a sign some lawmakers see a constitutional amendment or statute, not another executive order, as the more durable path if Trump wants to change the rule long-term. For now, the case heads toward the Fourth Circuit Court of Appeals, with Blanche already signaling the administration's endgame is back at the Supreme Court.