Trump moves to deny passports to US-born babies of noncitizens

By Margaret Hale · 2026-08-07

A question the Constitution was thought to have settled

Some legal controversies refuse to stay resolved, not because the law has changed but because the political will pressing against it has not. President Trump's renewed push to restrict birthright citizenship belongs to that category. The Supreme Court ruled against him on 30 June 2026, and within weeks new executive orders carrying the same essential instruction arrived on the desks of the Secretary of State, the Attorney General, the Secretary of Homeland Security and the Commissioner of Social Security.^[1]

The question at the centre of this dispute is whether a child born on American soil to parents who are unlawfully present, or present only on a temporary visa, is a citizen of the United States. The Fourteenth Amendment says plainly that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens." The administration argues the phrase "subject to the jurisdiction thereof" excludes children of those without permanent legal status, a reading that has been contested in federal courts at every level since January 2025.

What the new orders actually direct

Executive Order No. 14160, signed on 20 January 2025, directed that no department or agency of the United States government shall issue documents recognising US citizenship to persons born in the country when the mother was unlawfully present or lawfully but temporarily present and the father was not a US citizen or lawful permanent resident at the time of birth.^[1] The new orders carry that same framework into a second iteration, directing the same four agencies to bring their regulations and policies into conformity.

Section 3(a) of the original order tasked the Secretary of State, the Attorney General, the Secretary of Homeland Security and the Commissioner of Social Security with taking "all appropriate measures" to align departmental policy with the directive.^[1] In practice, the State Department withholds passports, the Social Security Administration withholds Social Security numbers, and DHS declines to issue documentation confirming citizenship status. For a newborn and their family, the effect is immediate: without those documents, the child exists in a legal limbo affecting schooling, healthcare access, employment eligibility and the right to travel.

A 30-day grace period was built into the original order's structure. Section 2(b) of Executive Order No. 14160 applied its provisions only to persons born more than 30 days after the date of the order, meaning births after 19 February 2025 were the first potentially affected.^[1] Whether that same structure applies to the new orders, and whether any retroactive application could survive judicial scrutiny, remains among the live legal questions state attorneys general and civil rights organisations are already preparing to contest.

The constitutional baseline and the administration's argument

The administration's position rests on a specific reading of the phrase "subject to the jurisdiction thereof." Solicitor General D. John Sauer put the argument directly in the government's own submissions: "Aliens who are just passing through the United States, and those who cross our borders illegally, lack ties of allegiance and do not obtain the 'priceless and profound gift' of citizenship for their children."^[5] On that reading, the jurisdictional clause is not a technical qualifier but a substantive gate the framers intended to exclude those without full political allegiance to the republic.

That argument runs directly into 127 years of settled precedent. In United States v. Wong Kim Ark, decided in 1898, the Supreme Court held that persons born in the United States to parents domiciled and residing there, though subjects of foreign powers, are citizens at birth under the Fourteenth Amendment's Citizenship Clause.^[3] Wong Kim Ark concerned a man born in San Francisco to Chinese parents who were ineligible for naturalisation under the laws then in force. The court's majority held that the common law tradition of jus soli, birthright by place of birth, was incorporated into the amendment and was not displaced by the parents' alien status.

Wong Kim Ark has never been overruled. The administration does not dispute the case's existence; it argues instead that the ruling addressed parents who were lawfully domiciled, and that its reasoning does not extend to those who entered without authorisation or on temporary grounds. The majority in Trump v. Barbara found that distinction unpersuasive as a matter of constitutional text and history.

Litigation: from district courts to the Supreme Court

The original January 2025 order generated litigation almost immediately. District courts across the country granted preliminary injunctions, with some judges issuing orders that blocked enforcement not merely against named plaintiffs but against any person in the country. The administration challenged the scope of those universal injunctions separately from the underlying constitutional question, and in Trump v. CASA, Inc. in June 2025, the Supreme Court curtailed the practice, limiting injunctive relief to the parties before the court.

That procedural ruling did not resolve the constitutional question. Suits continued in the First Circuit, including the case that became Barbara v. Trump, and in New Hampshire, where a class action was proceeding. The Supreme Court consolidated the constitutional question and issued its ruling in Trump v. Barbara on 30 June 2026.

The court's holding was direct. The Supreme Court held that Executive Order No. 14160 violates the Fourteenth Amendment's Citizenship Clause and is invalid.^[2] The majority applied the framework from Wong Kim Ark and found that the administration's reading of "subject to the jurisdiction thereof" could not be reconciled with the amendment's text, its original public meaning, or the long course of judicial interpretation since 1898.

Justice Brett Kavanaugh, who concurred in the judgment but dissented in part, put it plainly: "I respectfully disagree with the Court's constitutional holding. In my view, the Executive Order does not violate the Fourteenth Amendment."^[4] That split matters beyond doctrinal curiosity. Chief Justice John Roberts wrote for a six-justice majority, but Justices Thomas, Alito and Gorsuch dissented outright and Kavanaugh dissented in part, so the administration's reading of the Citizenship Clause drew sympathy from four of the nine sitting justices, and the composition of the court is not static. The administration's willingness to re-issue orders after a Supreme Court defeat can be understood, in part, as an effort to force the question back toward a bench whose membership or views may shift.

What happens next

The legal path from here is well worn. State attorneys general who litigated the first order are positioned to seek emergency injunctions against the new ones, arguing that Trump v. Barbara resolved the constitutional question and that re-issuing a substantially similar order changes nothing. Federal district courts will be asked to enjoin enforcement within the 30-day window before the orders take practical effect on newborns.

The appellate path likely leads back to the Supreme Court, where the three outright dissents and Kavanaugh's partial dissent remain the clearest sign that the constitutional debate still carries weight in the administration's favour. Whether the majority in Trump v. Barbara holds, whether the court agrees to hear the new challenge, and whether any justice modifies their position are questions that cannot be answered from the text of any order or brief.

For families affected in the interim, the stakes are not abstract. A child denied a Social Security number, a passport and official documentation of citizenship faces compounding disadvantages across every domain of civic life. The litigation now underway will determine whether the administration can sustain, even temporarily, a policy the Supreme Court struck down on 30 June 2026.

Margaret Hale

Margaret Hale writes about politics, policy and the culture of business. She is drawn to the people behind decisions and to the moments when a political story turns out to be a human one.