ACLU Sues Over Trump's New Birthright Citizenship Order

WASHINGTON — Civil rights lawyers went back to federal court on Monday, Sept. 28, to challenge President Trump’s second attempt to narrow birthright citizenship, three months after the Supreme Court struck down his first.

The proposed nationwide class action, Nathan v. Trump, was filed in the U.S. District Court for the District of Columbia. It targets an executive order Trump signed on Aug. 6 that tells federal agencies to stop recognizing the citizenship of certain U.S.-born children whose parents are not American citizens.

The plaintiffs are represented by the national ACLU, its affiliates in New Hampshire, Maine, Massachusetts and D.C., the NAACP Legal Defense Fund, Asian Law Caucus and Democracy Defenders Fund. Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project, is lead counsel. He said the new order is as unlawful as the last one and predicted it would “meet the same fate in court.”

What the August order does

The order denies automatic citizenship to a U.S.-born child when neither parent is a citizen and one of four conditions applies:

A parent is labeled an “alien enemy,” a category that includes members of certain designated terrorist groups.
A parent works for a foreign government or an international organization, reaching well beyond diplomats with full immunity.
A parent paid to “purchase or access” citizenship for the child, which the administration applies to commercial surrogacy and birth tourism, or committed fraud to obtain it.
The child is born in a U.S. territory or territorial waters where Congress has not granted citizenship by statute.

The White House has framed the order as an anti-fraud measure. Unlike the first order, it sets no effective date and no time limit, according to the complaint.

The families

Three families, all identified by pseudonyms, brought the case.

“Clara,” a French citizen who has lived in Washington for over a decade, gave birth to her son “Nathan” in August, after the order took effect. She and her husband hold G-4 visas and work for international organizations, which places Nathan squarely within the order.

“Edward,” an Australian living in Australia, and his wife already have a daughter born to a U.S. surrogate in 2021 who is an American citizen. They are expecting a second child through a U.S. surrogacy arrangement this October, and fear that child could be denied citizenship.

“Patricia,” a Western European citizen, and her husband also work for international organizations on G-4 visas. They expect a child around April 2027.

The proposed class would cover U.S.-born children, parents and expectant parents where neither parent is a citizen and at least one falls under the order.

The legal claims and what’s at stake

The suit argues the order violates the 14th Amendment’s Citizenship Clause and the federal statute granting citizenship to people born in the U.S. and subject to its jurisdiction. The statutory argument tracks a view Justice Brett Kavanaugh expressed about the first order. The plaintiffs also say the agencies broke the Administrative Procedure Act by issuing implementing rules without notice and comment.

Those rules carry real consequences, the complaint says:

A Homeland Security interim rule says children stripped of citizenship may be subject to removal. It lets some register for permanent residence from birth instead.
State Department guidance requires noncitizen parents applying for a child’s passport to sign a sworn attestation about whether the order applies, with possible prosecution for false statements.
Social Security guidance says a U.S. birth certificate alone will no longer prove citizenship for covered children, which could delay Social Security numbers.

The families warn that affected children could lose access to benefits, banking and jobs, and some could end up effectively stateless. They ask the court to declare the order unlawful, block it for the class and vacate the agency rules.

Round two after a Supreme Court loss

Trump’s first order, signed Jan. 20, 2025, targeted children of mothers who were undocumented or temporarily in the country. In Trump v. Barbara, a case the same coalition brought, the Supreme Court ruled on June 30 that those children are citizens at birth. The justices relied on the 1898 Wong Kim Ark precedent and held that the citizenship statute left no room for new exceptions.

On Aug. 6, Trump signed two more orders, including this one. The lawyers first tried to fold the new order into the old New Hampshire case. At a Sept. 22 hearing, U.S. District Judge Joseph Laplante said he considered Barbara essentially finished and suggested the new categories needed their own suit. He did not rule on the new order’s legality, which led to Monday’s filing.

What’s next

The ACLU of D.C. says the plaintiffs will soon move for a preliminary injunction to stop agencies from refusing to recognize their children’s citizenship. With Edward’s baby due in October, that timing matters. Newsweek reported it had asked DHS for comment; no public response from the administration on the suit had been reported as of this writing.

“President Trump cannot rewrite the Constitution,” said Carol Rose, executive director of the ACLU of Massachusetts.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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