A Bit of History

In 1857, the U.S. Supreme Court issued one of the most infamous decisions in American legal history: Dred Scott v. Sandford. The case arose when Dred Scott, an enslaved African American man, sued for his freedom in federal court. Scott had lived for several years in free territories with his enslaver and argued that his residence in those territories made him a free man.

The Supreme Court disagreed. Chief Justice Roger B. Taney delivered the majority opinion, which concluded:

1. No Citizenship for African Americans: The Court ruled that African Americans, whether enslaved or free, were not included as “citizens” of the United States under the Constitution. As a result, Scott had no standing to sue in federal court.
2. Congress Lacked Power to Ban Slavery in the Territories: The Court held that the Missouri Compromise of 1820—which prohibited slavery in certain U.S. territories—was unconstitutional. The opinion reasoned that Congress lacked authority to deprive slaveholders of their property (i.e., enslaved persons) without due process, under the Fifth Amendment.
3. Status Not Changed by Residence in Free Territory: The Court reasoned that Scott’s time spent in free territories did not change his status from enslaved to free.

The decision effectively invalidated efforts to limit the expansion of slavery, deepened sectional tensions, and helped propel the nation toward the Civil War.

Following the Union’s victory over the South and during the “Reconstruction Era,” the Dredd Scott opinion was superseded by the passage of the Thirteenth Amendment to the United States Constitution, which abolished slavery, and the Fourteenth Amendment, which guarantees that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This portion of the Fourteenth Amendment, referred to as the Citizenship Clause, was intended to correct the injustice of the infamous Dred Scott decision.

Courts have interpreted the Citizenship Clause to confer citizenship to nearly all individuals born on U.S. soil, regardless of the immigration status of their parents. And for over 150 years, birthright citizenship has been recognized as a bedrock principle of constitutional law.

Executive Order 14160

That long-standing principle was recently tested by President Trump’s issuance of Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” Signed on January 20, 2025, the Executive Order seeks to narrow the scope of birthright citizenship by redefining who is “subject to the jurisdiction” of the United States. Specifically, it declares that children born in the U.S. to noncitizen parents will no longer be considered citizens at birth if the mother was either (1) unlawfully present or (2) lawfully but temporarily present (such as on a student or tourist visa), and the father was not a U.S. citizen or lawful permanent resident. The Order directs all federal agencies to deny citizenship documentation to individuals falling within these two categories, for births occurring 30 days after the date of the order.

Of course, an executive order cannot override the United States Constitution. So, the legal backlash of PresidentTrump’s order was swift.

Legal Challenges

Several lawsuits were filed across the country challenging the legality and constitutionality of the Executive Order. A number of federal district court judges issued preliminary injunctions in those cases to block the Executive Order from taking effect anywhere in the United States. Importantly, these injunctions were not final decisions on whether the Executive Order was constitutional or not.  Instead, a preliminary injunction is a legal mechanism that maintains the status quo while the merits of a particular issue are litigated. So, the injunctions merely halted the Executive Order from taking effect during the pendency of the broader litigation about its legality.

The government, at the direction of President Trump, challenged the ability of those federal district courts to enter injunctions with nationwide effect, but those appeals to intermediate appellate courts were unsuccessful. The government then appealed to the United States Supreme Court, hoping for a different result.

A group of cases, including lawsuits by 22 states, 2 cities, and 2 immigrant rights groups, were consolidated for the appeal to the Supreme Court. At issue in the appeal was a procedural issue: whether lower courts could issue nationwide injunctions to block the Order’s enforcement.  Again, the Court was not asked to determine whether the Order was unconstitutional or not.  Although that is likely to make it to the Court at a later date.

In Trump v. CASA, Inc., delivered on June 27, 2025, the U.S. Supreme Court ruled that district courts generally lack the authority to issue universal injunctions that prevent the federal government from applying a law or policy to nonparties. The Court emphasized that equitable relief must be tailored to the actual plaintiffs before the court and cannot extend automatically to everyone in the country. So, after the ruling, the injunctions remained valid to prevent the government from enforcing the Executive Order against the states, cities, and rights groups that were parties to the cases appealed. But the injunctions could not operate to stop the government from following the Executive Order in states that did not challenge the Order’s constitutionality, like Texas.

However, that is not the end of the story. The Court carved out a key exception in its ruling: where a class is properly certified under Federal Rule of Civil Procedure 23 (the Rule relating to class actions), a district court may issue an injunction binding the government with respect to all class members—even if that includes individuals nationwide. This reaffirmed that while nationwide injunctions are usually inappropriate, a legitimate class action remains a lawful vehicle for nationwide relief.

The Exception

That exception to the general rule of no barring nationwide injunctions was swiftly tested in Barbara v. Trump, a case brought by several families in the District of New Hampshire. In an opinion issued on July 10, 2025, the federal district court certified a class of plaintiffs—composed of individuals likely to be affected by Executive Order 14160—and granted a clas

swide preliminary injunction. The court found that the plaintiffs were likely to succeed on the merits of their constitutional claims, that they faced irreparable harm, and that the public interest weighed heavily in favor of injunctive relief.

Accordingly, the court enjoined the Department of Homeland Security, Department of State, Department of Agriculture, and Centers for Medicare and Medicaid Services from enforcing the Executive Order. Importantly, this injunction applies nationwide—but only because the plaintiffs succeeded in certifying a nationwide class. The government has yet to appeal.

The Current Status of Birthright Citizenship

The implications of Barbara v. Trump are profound. While the Supreme Court in Trump v. CASA restricted the reach of district court injunctions, it left open a clear procedural pathway for obtaining nationwide relief through class certification. The Barbara Court followed that blueprint, resulting in a sweeping but lawful injunction that now blocks implementation of Executive Order 14160 across the country.

For now, the Executive Order is on hold—and the constitutional promise of birthright citizenship remains intact. Federal agencies must issue citizenship documentation to individuals in the same manner as they have done for decades.

What’s Next?

It is almost certain that the federal government will appeal the class certification, setting the stage for a potential return to the Supreme Court. In fact, this is likely to be the new battleground going forward with respect to the war against nationwide injunctions relating to executive action. Procedural and substantive challenges to the certification of a class under Rule 23 will likely be common. But again, importantly, this only has a bearing on whether a district court can prevent the government from taking action nationwide, not the merits of a particular case.

Whether the Executive Order is constitutional or not is going to be a question that must be decided by the Supreme Court. President Trump’s Executive Order cannot override the Constitution as it has been interpreted by United States Courts for the past 150 years. Only the Supreme Court has the final say on whether the Constitution has been applied correctly. This is the Court’s most important purpose.

Perhaps this was the intent behind the Order, to place an otherwise decided issue before the Court for potential reinterpretation. Though my suspicion is that the Order was just the easiest way for President Trump to claim he tried to do what he said he would on the campaign trail. Amending the Constitution, after all, is no easy task. Either way, we are likely in for a ride. Hopefully, though, the Supreme Court holds fast to precedent and its traditional role as an apolitical check on the power of the Executive and Legislative branches of government. Time will tell.