No Kings Day at the Court
The birthright case before the Supreme Court Wednesday is about more than citizenship. It's about whether the president can unilaterally change the Constitution.
Since 1868, when the 14th Amendment to the Constitution was passed in the aftermath of the Civil War, the law has been clear that babies born on United States soil are citizens of our country. This is a fundamental American principle for our nation of immigrants: if you are born here, you are an American. You belong. You are one of us.
Those who have been paying attention to Donald Trump’s words and actions were not surprised that one of his first actions in his second term was to try to end birthright citizenship as we know it. Birthright citizenship runs counter to Trump’s brand of division, exclusion, and othering. A hallmark of Trump’s politics is the scapegoating of immigrants and people of color, particularly Latinos.
On January 20, 2025, the first day of Trump’s second term, he signed Executive Order 14160, entitled “Protecting the Meaning and Value of American Citizenship,” which purports to end birthright citizenship for any baby born in the United States who does not have at least one parent who is a citizen or lawful permanent resident at the time the baby is born. Aside from the policy ramifications of such a legal change, a president cannot change the Constitution by executive order. The Constitution can be changed only by a constitutional amendment. Article V of the Constitution lays out the process for proposing and ratifying a constitutional amendment. The process is cumbersome and involved and requires action by Congress and state legislatures. Rather than attempting to amend the Constitution, Trump is trying to bypass that process and change the Constitution on his own. The problem, of course, is that such unilateral executive action is not legal.
Democracy Defenders Fund, with our partners at the ACLU, NAACP LDF, and the Asian Law Caucus, sprang into action immediately. We filed a complaint on behalf of three nonprofits to challenge the executive order, and we quickly obtained a preliminary injunction blocking it from being enforced against our clients. Several other lawsuits challenging the executive order were also filed in federal courts. The outcome was the same in all: The courts found that the executive order was likely illegal and blocked its enforcement with preliminary injunctions. Three of these lawsuits were appealed all the way to the Supreme Court, but, in the CASA v. Trump decision that was released on June 27, 2025, the court did not reach the merits of whether the executive order is legal. Instead, the Supreme Court found that injunctions that apply nationwide, beyond the plaintiffs who filed the lawsuit, are impermissible. In that decision, the court explained that plaintiffs can obtain nationwide relief with class actions.
The day that the CASA decision was released, DDF and our partners filed a class action challenging the executive order. The district court quickly certified the class and issued a new preliminary injunction that applies to a nationwide class of infants to whom the executive order will apply if it goes into effect. This case has been appealed to the Supreme Court; oral argument will be heard Wednesday.
More than the principle of birthright citizenship is at stake in this case. The court’s decision will also go to the very rule of law we have in this country and whether our country is truly by the people and for the people, or whether a president can change the Constitution with the stroke of a pen. We are optimistic that the court will affirm what all lower courts have found: The executive order is illegal.
Taryn Wilgus Null is senior counsel at Democracy Defenders Fund, where she litigates cases to protect democracy and the rule of law. Before joining DDF in March 2025, she spent nearly a decade as a senior trial attorney with the U.S. Department of Justice, Civil Rights Division, Employment Litigation Section
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