Home › Case law › Trump v. Barbara

Trump v. Barbara: a child born in the United States is a U.S. citizen even if the parents are on temporary visas or present unlawfullyTrump v. Barbara, No. 25-365, 609 U.S. ___ (2026)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

In one sentence: On June 30, 2026, the U.S. Supreme Court, 6–3, upheld the injunction against Executive Order 14160 on birthright citizenship. The majority opinion by Chief Justice Roberts (five votes) held that children born in the United States to parents unlawfully or temporarily present (for example, on H-1B, F-1 or B visas) are "subject to the jurisdiction" of the United States and are U.S. citizens at birth; Justice Kavanaugh disagreed with the constitutional reasoning but concurred in the judgment because the order violates the federal statute 8 U.S.C. 1401(a). On August 6, 2026, the President signed a separate Executive Order 14418, which, as of October 9, 2026, remains in litigation.

Case at a glance

Item	Details
Case name	Trump v. Barbara (plaintiffs are a nationwide class of U.S.-born children affected by the executive order)
Court	Supreme Court of the United States (certiorari before judgment)
Docket and citation	No. 25-365; 609 U.S. ___ (2026). Lower-court cases: U.S. District Court for the District of New Hampshire No. 1:25-cv-00244; First Circuit No. 25-1861
Key dates	September 26, 2025: government petitions for certiorari; December 5, 2025: certiorari granted; April 1, 2026: oral argument; June 30, 2026: decision; August 3, 2026: Supreme Court judgment issued
Result	District court's class-wide preliminary injunction affirmed
Vote	6–3 on the judgment; 5–4 on the constitutional question. Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett and Jackson; Justice Jackson filed a concurring opinion (joined in part by Justice Sotomayor); Justice Kavanaugh concurred in the judgment and dissented in part; Justice Thomas filed a dissenting opinion (joined by Justice Gorsuch); Justices Alito and Gorsuch each filed dissenting opinions
Law involved	Citizenship Clause of the Fourteenth Amendment; 8 U.S.C. 1401(a) (INA 301(a)); Executive Order 14160
Subject	Birthright citizenship; "subject to the jurisdiction thereof"; the scope of United States v. Wong Kim Ark
Current status (as of October 9, 2026)	Binding precedent for all lower courts and federal agencies. Executive Order 14160 is invalid. Executive Order 14418, signed August 6, 2026, is being litigated in separate cases and is partly enjoined (see "Later developments")
Opinion text	Justia, Supreme Court docket

Background

The Fourteenth Amendment provides that all persons born or naturalized in the United States, and "subject to the jurisdiction thereof," are U.S. citizens. In 1898, United States v. Wong Kim Ark held that Wong Kim Ark, born in San Francisco to Chinese parents domiciled in the United States, was a U.S. citizen. For more than a century afterward, the federal government recognized persons born in the United States (apart from a handful of exceptions such as children of diplomats) as citizens, regardless of their parents' immigration status.

On January 20, 2025, the President signed Executive Order 14160, directing federal agencies not to issue or accept documents recognizing the U.S. citizenship of children born in the United States after February 19, 2025 in the following situations:

the mother was unlawfully present and the father was not a U.S. citizen or green card holder at the time of birth; or
the mother's presence was lawful but temporary (the order's examples: visa-waiver entry, or a student, work or tourist visa) and the father was not a U.S. citizen or green card holder at the time of birth.

Under the order, federal agencies would not recognize the citizenship of a child born in the United States while both parents held nonimmigrant visas such as H-1B, F-1 or B-2. The government's main argument was that the parents in Wong Kim Ark had a "permanent domicile" in the United States, whereas parents who are unlawfully or temporarily present lack that connection, so their children are not "subject to the jurisdiction" of the United States.

Several federal courts promptly enjoined the order. On June 27, 2025, in Trump v. CASA, the Supreme Court limited "universal injunctions" but did not decide whether the order was constitutional.

Facts

On the day CASA was decided, the American Civil Liberties Union (ACLU) and others filed a class action on behalf of affected children in the U.S. District Court for the District of New Hampshire. On July 10, 2025, Judge Laplante provisionally certified a nationwide class of children (children affected by the order who would be denied citizenship) and issued a preliminary injunction for the class. The government appealed to the First Circuit and, on September 26, 2025, petitioned the Supreme Court for certiorari before judgment. The Supreme Court granted the petition on December 5, 2025. The question presented was whether Executive Order 14160, on its face, complies with the Citizenship Clause and 8 U.S.C. 1401(a).

Issues

Are children born in the United States to parents unlawfully or temporarily present "subject to the jurisdiction" of the United States, and therefore citizens at birth under the Fourteenth Amendment?
Does Wong Kim Ark apply only where the parents have a permanent domicile in the United States?
Even apart from the Constitution, does the order violate 8 U.S.C. 1401(a), enacted by Congress?

What the Court held

Majority (Roberts, five votes): birthplace rule, not conditioned on domicile

The majority opinion begins by framing the question: whether the Constitution guarantees citizenship to children born in the United States to parents who are unlawfully or temporarily present. The Court answered yes. The syllabus states: "Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth".

The majority's main reasoning:

The common-law birthplace rule: The Citizenship Clause adopted the English common-law birthplace rule (jus soli): birth within the territory creates "natural allegiance," subject only to long-recognized narrow exceptions, such as children of foreign ambassadors and other representatives of foreign sovereigns, and persons owing allegiance to Native American tribes.
Wong Kim Ark is the core precedent: The Court read Wong Kim Ark as treating the Fourteenth Amendment as affirming the fundamental rule of citizenship by birth within the territory; its reasoning covers nearly all children born in the United States and is not conditioned on the parents' domicile.
Rejecting a "domicile" test: The majority wrote: "Domicile and national citizenship are distinct concepts", rejecting the view that acquiring citizenship at birth requires the parents to be domiciled in the United States.

The majority's ruling is constitutional, so birthright citizenship as defined here cannot be changed by executive order. The majority did not specifically discuss legislation by Congress, but rights guaranteed by the Constitution generally cannot be abolished by ordinary legislation.

Justice Jackson's concurrence

Justice Jackson joined the majority opinion in full and wrote separately mainly to respond to Justice Thomas's dissent: she disagreed with reading the Citizenship Clause as a narrow remedy aimed only at the formerly enslaved and those who had "made a home" in the United States, viewing the Reconstruction Amendments as having broader equality purposes.

Justice Kavanaugh: concurring in the result on statutory grounds, rejecting the constitutional reasoning

Justice Kavanaugh wrote: "In my view, the Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute, 8 U. S. C. §1401(a)." He reasoned that the Nationality Act of 1940 and the Immigration and Nationality Act of 1952 carried over the constitutional phrase "subject to the jurisdiction thereof" and should be read to adopt the Supreme Court's interpretation of that phrase in Wong Kim Ark; from 1940 to 2025 the executive branch likewise recognized only the exceptions listed in Wong Kim Ark. Congress could amend 1401(a) but has not done so, so the order conflicts with the statute. In his view the Court should have decided the case on this narrower statutory ground. Because he disagreed on the constitutional question, the vote on that question was 5–4, while the judgment was 6–3.

Dissents

Justice Thomas (joined by Justice Gorsuch) argued that the original meaning of the Citizenship Clause centers on "domicile" and that the clause was written for people born in the United States who make it their home; children whose parents are not domiciled in the United States (whether lawfully or unlawfully present) are not necessarily "subject to the jurisdiction" of the United States, so the order is consistent with the Constitution in those situations.
Justice Alito argued that the Fourteenth Amendment grants citizenship only to children who owe allegiance solely to the United States at birth, and that the majority's reading makes almost everyone born in the United States a citizen.
Justice Gorsuch wrote a separate dissent, likewise emphasizing "domicile," rather than whether the parents are citizens, as the test.

What it means for applicants

The following is a general explanation. Barbara is now binding Supreme Court precedent, but the new executive orders issued after August 2026 and the related litigation are still ongoing, and particular situations may change; check the law and official rules in effect at the time.

Parents on H-1B, L-1, F-1, J-1 or similar visas

A child born in the United States is a U.S. citizen. Barbara expressly covers parents who are "temporarily present," and Executive Order 14160 has been held invalid.
The child's citizenship is proven by the state-issued birth certificate. You can apply for the child's U.S. passport (a first application for a child under 16 generally requires both parents' consent and an in-person submission) and Social Security number (most hospitals can apply at the time of birth registration). Specific procedures, fees and timing are governed by the current rules of the U.S. Department of State and the Social Security Administration.
As a U.S. citizen, the child should travel in and out of the United States on a U.S. passport and does not need, and should not apply for, a U.S. visa or a dependent status such as H-4 or F-2.
The parents' own visas and status do not change because the child is a U.S. citizen. The parents must still maintain their own status, and a U.S. citizen child must be at least 21 to petition for a parent's green card.
Whether the child also holds the nationality of the parents' country, and what documents the child needs to travel there, depends on that country's law; check with that country's embassy or consulate in the United States. Our firm advises only on U.S. law.

Giving birth in the United States on a B-1/B-2 visitor visa or visa-waiver entry

Under Barbara, even where the parents are temporary visitors, the child is in principle a U.S. citizen, but note the following:
Risks to the visa itself: A State Department regulation (22 CFR 41.31(b)(2)) provides that where a consular officer has reason to believe an applicant will give birth during the U.S. stay, the officer presumes the applicant's primary purpose is to obtain U.S. citizenship for the child, which is not a permissible primary purpose for a B visa; the presumption can be rebutted with another genuine purpose (such as documented medical treatment). Concealing or misstating the purpose of the trip in a visa application or at entry may be treated as misrepresentation, with long-term or even permanent inadmissibility consequences. See U.S. visa refusals under 214(b).
New executive orders: Executive Order 14418 of August 6, 2026 places in a non-recognized category children whose parents arranged, through a "commercial transaction," for the mother to travel to the United States to give birth, or engaged in commercial surrogacy in the United States, among other situations; Executive Order 14419 ("Ending Birth Tourism"), signed the same day, directs the State Department and the Department of Homeland Security to step up enforcement against "birth tourism." As of October 9, 2026, Executive Order 14418 is enjoined as to the class certified in the Maryland case, and the government has reportedly asked to lift that injunction; according to public reports, Executive Order 14419 is not currently enjoined by any court.

A parent who is an employee of a foreign government or international organization

Children of foreign diplomatic representatives have always been an exception to "subject to the jurisdiction thereof." Executive Order 14418 extends this to employees of foreign embassies and consulates, persons employed in an official capacity by a foreign government, and employees of international organizations entitled to international-organization immunities; in September 2026 the Department of Homeland Security also issued an interim final rule creating a procedure to register these children as green card holders. These measures are currently enjoined as to class members, their scope is still being litigated, and each case requires individual analysis.

Later developments (as of October 9, 2026)

No rehearing petition: On July 8, 2026, the President said on social media that the government would seek rehearing in the Supreme Court. But the Supreme Court docket shows no rehearing petition, and the government reportedly did not file one before the deadline. The Supreme Court's judgment was issued on August 3, 2026. On June 30, the Court also denied the government's petition for certiorari in the Washington case (No. 25-364).
Executive Order 14418 (August 6, 2026): Titled "Continuing to Protect the Meaning and Value of American Citizenship," it was published in the Federal Register on August 11, 2026. It provides that, where neither parent is a U.S. citizen, federal agencies will not issue documents recognizing the citizenship of a child if a parent is an "enemy alien" (meaning a member of a foreign terrorist organization or a specially designated global terrorist) or an employee of a foreign government or international organization, or if the parents engaged in a "commercial transaction" or fraud to obtain birthright citizenship (including commercial arrangements for the mother to travel to the United States to give birth or for U.S. surrogacy), or if the child is born in a U.S. territory where federal law does not confer citizenship. The order directs agencies to issue implementing guidance within 30 days. Executive Order 14419 ("Ending Birth Tourism"), signed the same day, directs the State Department and the Department of Homeland Security to refuse visas, deny entry or revoke visas for trips made for the purpose of giving birth, and targets businesses that facilitate "birth tourism."
New Hampshire (the original Barbara case): On August 11, 2026, plaintiffs' counsel in the original Barbara case asked the court to clarify whether the existing injunction also covers the new order. At a hearing on September 22, 2026, Judge Laplante said he considered Barbara "basically over" and that the new order concerns a different group of children, which seemed to call for a separate suit; the plaintiffs then withdrew the request and filed a new case (see the Nathan case below).
Maryland (CASA v. Trump, No. 8:25-cv-00201): On September 2, 2026, Judge Boardman issued a preliminary injunction barring enforcement of Executive Order 14418 against the class already certified in that case (roughly: children born in the United States whose mother was unlawfully or temporarily present and whose father was not a U.S. citizen or green card holder), finding the order "almost certainly unconstitutional" as to that class. The injunction does not prevent agencies from preparing implementing guidance. The Department of Justice reportedly asked the court in early October 2026 to lift the injunction, arguing that new agency guidance shows the policy applies only to children born after it takes effect, so the plaintiff families lack standing; as of October 9, 2026, no ruling on that request had been seen.
District of Columbia (Nathan v. Trump, No. 1:26-cv-03377): On September 28, 2026, the ACLU and other organizations filed a new class action in the U.S. District Court for the District of Columbia challenging Executive Order 14418 on behalf of the categories of families targeted by the new order (reportedly, the named plaintiff is a child born in August 2026 whose parents are employed by an international organization, and other plaintiffs include families who had children through U.S. surrogacy). As of October 9, 2026, no ruling on a preliminary injunction had been seen.
Agency rule: A Department of Homeland Security (USCIS) interim final rule (published in the Federal Register on September 9, 2026, with a request for public comment) creates a green card registration procedure for U.S.-born children where a parent is a foreign government employee (including an employee of an international organization entitled to international-organization immunities) and neither parent is a U.S. citizen; it applies to children born after the rule takes effect. The rule states that, because of the preliminary injunction in the Maryland case, it will not be applied to members of that class.

In short (as of October 9, 2026): Executive Order 14160 is invalid; Executive Order 14418 is enjoined as to the class in the Maryland case, but the injunction could be modified or lifted; according to public reports, Executive Order 14419 is not currently enjoined. Further litigation may change the position of some groups; check the latest developments. For updates, see the immigration litigation tracker.

Practical tips

Families on ordinary work or study visas: After the child is born, obtain the birth certificate, Social Security number and U.S. passport in the usual way, and keep the original birth certificate and the parents' status documents at the time (visa, I-94, I-797, etc.) for your records.
Families in a category listed in the new executive order: If you are an employee of a foreign government or international organization, or had a child in the United States through a commercial birth arrangement or U.S. surrogacy, have an attorney evaluate the current scope of the injunctions and agency practice before applying for the child's passport or other identity documents.
Planning to give birth in the United States as a visitor: Evaluate the legal risks for the visa and entry first, and never conceal or misstate the purpose of your trip in a visa application or at entry.
Passport or Social Security number application denied or held: Keep the written notice, consult an attorney promptly, and confirm whether you are a member of a class in a class action.

Frequently asked questions

My spouse and I are both on H-1B (or F-1) visas. Is our child born in the United States a U.S. citizen?

Yes. Barbara expressly holds that children born in the United States to parents who are temporarily present are "subject to the jurisdiction" of the United States and are citizens at birth. The child can use the U.S. birth certificate to apply for a U.S. passport and Social Security number.

Could the citizenship of children born after February 19, 2025 be revoked retroactively?

The Supreme Court has held Executive Order 14160 invalid, and according to public reports the order was never actually enforced. The children's citizenship is not affected. The new Executive Order 14418 targets specific categories, and the government has said in the litigation that the new policy applies only to children born after it takes effect; the outcome of the litigation and official rules will control.

Why do some reports say 6–3 and others 5–4?

The judgment was 6–3: six Justices agreed that the order cannot be enforced. But Justice Kavanaugh's reason was that the order violates the federal statute 8 U.S.C. 1401(a); he did not consider the order unconstitutional. So on the question "is it unconstitutional?" the vote was 5–4. As the opinion of the Court, the constitutional holding binds the lower courts and federal agencies.

Could Congress abolish birthright citizenship by statute?

The majority's holding is constitutional and does not specifically discuss legislation by Congress; under general constitutional principles, rights guaranteed by the Constitution cannot be abolished by ordinary legislation. Justice Kavanaugh, by contrast, took the view that Congress could amend 1401(a) without violating the Fourteenth Amendment. As of October 2026, no such law has taken effect.

If we have a child in the United States while on a B visa, is the child a citizen? What are the risks?

Under Barbara, the child is in principle a citizen at birth, but Executive Order 14418 places situations such as arranging, through a "commercial transaction," to travel to the United States to give birth in a non-recognized category; that order is currently enjoined as to some class members and remains in litigation. In addition, the parents' own visas may be affected by issues with the purpose of the trip, and the consequences of misrepresentation are especially serious. Consult an attorney first.