Birthright citizenship at the Supreme Court

Status: Decided — Trump v. Barbara (No. 25-365)

Trump v. Barbara still stands: decided June 30, 2026, the Supreme Court struck down Executive Order 14160 by a 6–3 vote, and a child born in the United States is a U.S. citizen at birth regardless of the parents' immigration status. On August 6, 2026 the President signed Executive Order 14418, which does not disturb that rule and instead directs agencies to withhold citizenship documents in four narrow situations — all of which require that neither parent is a U.S. citizen. The State Department published its implementation plan on September 4, 2026: when neither parent is a U.S. citizen, an attestation from each parent, under penalty of perjury, about whether either parent meets any of the order's conditions must be submitted with a child's passport application (adjudication continues if the answers confirm none is met), and State reads the foreign-government-employee category to include locally hired embassy or consulate staff who are nationals of the sending country, while third-country nationals, contractors and personal employees of officials generally fall outside it, assessed case by case. USCIS, SSA and DOJ had published nothing as of September 5, 2026.

Next step: The other agencies' guidance, and any challenge to State's plan. The State Department published its implementation plan on September 4, 2026; as of September 5, USCIS/DHS, the Social Security Administration and the Justice Department had not. Watch for those, for the attestation State says must be submitted by each parent with a child's DS-11 when neither is a citizen, for any modification of the plan (it calls itself proposed and subject to change), and for litigation over the foreign-government-employee category, which State reads to include locally hired consular staff who are nationals of the sending country. Whether that reading survives review is unresolved.

Primary source last checked automatically on 2026-09-08 — status can change with a single court ruling. Official source.

Update — August 11, 2026: a new executive order, and what it does not do

On August 6, 2026 the President signed Executive Order 14418, published August 11 at 91 FR 51991. If you are an undocumented parent of a U.S.-born child, the short version is: your child’s citizenship is not affected. Trump v. Barbara still stands, and the new order does not claim otherwise — it says it addresses categories of children who, in its reading, fall outside the rule the Supreme Court announced.

The order tells federal agencies not to issue documents recognizing U.S. citizenship — and not to accept state or local documents recognizing it — for a person when neither parent is a U.S. citizen and any one of these applies:

  1. A parent is an “alien enemy” — defined as a member of a designated Foreign Terrorist Organization under 8 U.S.C. 1189, or a Specially Designated Global Terrorist.
  2. A parent is a foreign government employee — ambassadors; people employed by a foreign embassy or consulate who are nationals of that country; people employed by a foreign government in an official capacity; and employees of international organizations who hold international-organization immunity.
  3. The parents paid for the birth — a commercial transaction to ensure the mother was present in the U.S. to give birth (birth tourism), or a commercial surrogacy arrangement with a surrogate in the U.S.; or fraud committed to obtain citizenship.
  4. The birth was in a U.S. territory or territorial waters where citizenship is not conferred by federal statute.

Every one of those requires that neither parent is a U.S. citizen. If either parent is a citizen, none of it applies.

Category 2 is the contested one. The long-standing exception, which predates this order by more than a century, covers children of accredited diplomats who hold immunity. Executive Order 14418 defines the category to include any embassy or consulate employee who is a national of that country — which would reach locally hired consular staff who have no diplomatic immunity. Agencies must publish implementation guidance within 30 days of August 6, i.e. by September 5, 2026, and that guidance will show how broadly they intend to read it.

If you think you fall into one of these four categories, this is a situation to take to a licensed immigration attorney rather than to resolve from a website.

Update — September 5, 2026: the State Department publishes its implementation plan

The first agency guidance is out. On September 4, 2026 the State Department posted, under U.S. Passports News on travel.state.gov, a three-page proposed Implementation Plan for Executive Order 14418, and marked its Executive Order 14160 page “Superseded by Executive Order 14418.” The plan says it is prospective only, takes effect on publication “subject to any legal obligations,” and “may be subject to further modification.” As of September 5, USCIS, the Social Security Administration and the Justice Department had published nothing (Federal Register search, USCIS newsroom, ssa.gov news and the DOJ press-release feed checked).

What changes at the passport window. Nothing for a child with at least one U.S.-citizen parent. When neither parent is a U.S. citizen, passport agency staff will use the parental fields on Form DS-11, the submitted documents and government records to check the four categories, and an attestation from each parent, under penalty of perjury, must be submitted as part of the determination of whether either parent meets any of the order’s conditions. If the attestation is not filed with the application it is requested once the application is reviewed; if the answers confirm no condition is met, adjudication of the passport continues. The plan warns that a false attestation can lead to federal criminal prosecution. Acceptance agents (post offices, clerks) make no decision — they only check that the application is complete.

How State reads the contested category. “Foreign government employee” includes: accredited diplomats; a person employed by a foreign embassy or consulate who is a national of that country — the locally hired consular staff this page flagged in August; people employed by a foreign government in an official capacity; and employees of international organizations that hold international-organization immunity. It generally does not include (subject to an individual assessment of employment status, purpose of travel and visa class): personal employees of foreign officials such as assistants, chauffeurs or house cleaners; employees of state-owned enterprises; third-country nationals working for a foreign government, including at an embassy or consulate; employees of other international organizations; contractors; and foreign officials visiting in a personal capacity. “Alien enemy” is defined to include members of a designated Foreign Terrorist Organization and Specially Designated Global Terrorists. The birth-tourism and U.S.-surrogacy category and the territories category track the order’s own text.

If you work at your country’s consulate in the United States and your child was born here, the citizenship question is unchanged by this plan — but the document question is now concrete, and it belongs with a licensed immigration attorney, not a website.

What’s happening

On June 30, 2026, the Supreme Court decided Trump v. Barbara (No. 25-365), striking down Executive Order 14160 by a 6–3 vote. Chief Justice Roberts wrote the majority opinion, holding that the Fourteenth Amendment’s Citizenship Clause guarantees citizenship to children born in the United States regardless of their parents’ immigration status. Justice Kavanaugh concurred in the judgment on statutory grounds; Justices Alito, Thomas, and Gorsuch dissented.

The order is void and unenforceable. Birthright citizenship continues exactly as it did before the order — consistent with more than a century of precedent under United States v. Wong Kim Ark (1898).

Who it affects

U.S.-born children whose mother is an unauthorized immigrant, or lawfully present only temporarily, and whose father is not a U.S. citizen or lawful permanent resident — the class whose automatic birthright citizenship Executive Order 14160 would have denied. The Supreme Court struck the order down, so these children are U.S. citizens at birth, as they were before.

Estimated scale: 260,000 — U.S. births per year that would not have qualified for citizenship under EO 14160 (Pew Research).

How it got here

  1. Jan 20, 2025 President Trump signs Executive Order 14160, directing federal agencies to stop recognizing birthright citizenship for certain U.S.-born children.
  2. Dec 5, 2025 Supreme Court grants certiorari before judgment, taking the case directly.
  3. Apr 1, 2026 Oral argument held on whether EO 14160 complies with the Fourteenth Amendment Citizenship Clause and 8 U.S.C. § 1401(a).
  4. Jun 30, 2026 The Supreme Court strikes down Executive Order 14160 by a 6–3 vote. Chief Justice Roberts writes the majority opinion, holding the Fourteenth Amendment's Citizenship Clause guarantees citizenship to children born in the United States regardless of their parents' immigration status. Justice Kavanaugh concurs in the judgment on statutory grounds; Justices Alito, Thomas, and Gorsuch dissent. Birthright citizenship is upheld.
  5. Aug 6, 2026 President Trump signs Executive Order 14418, “Continuing To Protect the Meaning and Value of American Citizenship” (published August 11, 2026 at 91 FR 51991). It does not reopen Trump v. Barbara. It directs agencies not to issue or accept citizenship documents for a person when neither parent is a U.S. citizen and one of four categories applies: a parent is a designated foreign terrorist or Specially Designated Global Terrorist; a parent is a foreign government employee; the parents paid for birth tourism or a U.S. surrogacy arrangement, or committed citizenship fraud; or the birth was in a U.S. territory where citizenship is not conferred by statute. Agencies have 30 days to publish implementation guidance.
  6. Sep 4, 2026 The State Department publishes its proposed EO 14418 Implementation Plan (travel.state.gov, U.S. Passports News) and marks its EO 14160 page superseded: when neither parent is a U.S. citizen, an attestation from each parent, under penalty of perjury, about whether either parent meets any of the order's conditions must be submitted with a child's DS-11; locally hired embassy or consulate staff who are nationals of the sending country are read as foreign government employees, while third-country nationals and contractors generally are not (case by case). First agency guidance under Section 3(b); USCIS, SSA and DOJ still silent on September 5.

What to watch next

The other agencies’ guidance, and any challenge to State’s plan. The State Department published its implementation plan on September 4, 2026 (see the update above); as of September 5, USCIS/DHS, the Social Security Administration and the Justice Department had not. Watch for those, for the attestation State says must be submitted by each parent with a child’s DS-11 when neither is a citizen, for any modification of the plan (it calls itself proposed and subject to change), and for litigation over the foreign-government-employee category, which State reads to include locally hired consular staff who are nationals of the sending country. Whether that reading survives review is unresolved.

The ruling in Trump v. Barbara itself is final and applies nationwide, and Executive Order 14418 does not reopen it.

Official sources

This page is general information about litigation, not legal advice. A case’s status can change with a single ruling, and outcomes can turn on facts specific to each person. For advice on a specific situation, consult a licensed immigration attorney or a DOJ-accredited representative.