US Judge Declines to Block Trump's Second Birthright Citizenship Order

A United States judge has rejected, for the time being, a request for a temporary restraining order to block President Donald Trump’s second executive order restricting birthright citizenship.

Friday’s decision was one of the first legal tests for the new executive order, which Trump issued on August 6, after his initial attempts to limit birthright citizenship were struck down by the Supreme Court.

District Court Judge Deborah Boardman, an appointee of former President Joe Biden, declined to immediately approve the preliminary injunction, despite expressing concern about Trump’s new order.

“As far as I can tell, this is unprecedented,” Boardman said of the order.

Boardman instructed the plaintiffs — a coalition of immigrant families and advocacy groups — to address the latest executive order directly in their lawsuit, which is a continuation of an ongoing fight over birthright citizenship.

She also indicated she would schedule a briefing once a revised complaint was filed, to consider the restraining order again.

In 2025, Boardman was one of several judges who approved preliminary injunctions to block the first birthright citizenship order Trump signed, declaring it unlawful.

Trump has repeatedly sought to limit who can receive US citizenship at birth, as part of a broader crackdown on immigration in the country.

He and his allies have argued that birthright citizenship encourages “birth tourism”, wherein parents supposedly travel to the country to give birth, as a means of securing citizenship for their baby.

A constitutional right

Birthright citizenship is enshrined in the Fourteenth Amendment of the US Constitution, and it guarantees that nearly all children born on US soil receive citizenship, regardless of their parents’ nationality or immigration status.

The Fourteenth Amendment was adopted in 1868, after the US Civil War, as a means of ensuring that people who were formerly enslaved were not deprived of their rights as US citizens. But over the subsequent decades, the Supreme Court has upheld its wide applicability.

In the 19th-century case United States v Wong Kim Ark, for instance, the Supreme Court ruled that an American man born to Chinese immigrants in San Francisco could not have his citizenship denied.

The amendment declares that “all 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”. There are only a few exceptions, including the children of diplomats or occupying military forces.

Trump, however, has argued that the children of irregular or temporary immigrants are not “subject to the jurisdiction” of the US and should therefore not be granted birthright citizenship.

On the very first day of his second term, on January 20, 2025, he signed an executive order barring government agencies from issuing citizenship documents to children whose parents were either “unlawfully present” in the US or whose presence was “lawful but temporary”.

That initial order upended years of legal precedents, and it was almost immediately challenged in court. Critics denounced the order as a means of leaving babies effectively stateless.

On June 30, the Supreme Court struck down Trump’s 2025 order in a 6–3 decision, ruling it to be unconstitutional.

Issuing a second order

Trump responded with a second birthright citizenship order on August 6. Its terms were narrower in scope.

It seeks to deny citizenship to children born to non-citizen parents who are deemed “alien enemies” or “terrorists”. Children whose parents “engage in a commercial transaction” to access birthright citizenship or ensure an expectant mother is in the US to give birth would also be denied citizenship under the law.

The children of people from US territories where citizenship is not conferred by federal statute — namely, American Samoa — would also not be eligible.

Trump championed the second executive order as a means of defending against “the risks posed by malign foreign actors who attempt to swindle American citizens by taking advantage of the generosity of our Nation”.

But critics decried the second executive order as another attempt to strip immigrant children of their basic civil rights.

A coalition of immigrant families and rights groups — including We Are CASA and the Asylum Seeker Advocacy Project — pledged to fight the new order, as they had the first one.

“It is well within the ambit of this case for the Court to enjoin Defendants from depriving class members of citizenship — no matter how many times the President, who has no power to change the law of birthright citizenship, directs them to do so,” the coalition’s lawyers wrote in an August 24 memorandum, calling for an injunction.

“It is simply not up to the Executive Branch to decide who is a citizen by birth in the United States.”

But the memorandum also argued that there was no need for the coalition members to “amend their complaint before the Court can issue further injunctive relief”, given that the principle behind the case remains the same: The president cannot deny citizenship to children born on US soil.

“They are entitled to have their citizenship recognized by the Executive Branch no matter how many overlapping Executive Orders the President issues in his attempt to override the Constitution,” the document reads.

The case is expected to continue, with a revised petition for a temporary restraining order.