Birthright Citizenship Order: Judge Asks When It Starts

A federal judge in Washington weighed on Thursday whether to block President Trump’s second birthright citizenship order, and much of the hearing turned on something the order never says: the date it starts.

The birthright citizenship order Trump signed on Aug. 6, which would deny automatic U.S. citizenship to some children of foreign government and international organization employees, some children born via surrogacy to noncitizen parents and several other groups, had its first full courtroom test in the nation’s capital on Nov. 12. U.S. District Judge Christopher R. Cooper heard the challengers’ motions for a preliminary injunction and class certification in Nathan v. Trump and pressed Justice Department lawyers on when the order actually applies, according to States Newsroom. No ruling had been reported by Thursday night.

The timing question is not academic. Expectant parents, including one plaintiff family due around April 2027, need to know whether a U.S. birth certificate will still produce a passport and a Social Security number. DHS issued an interim final rule carrying out the order on Sept. 4, SCOTUSblog reported, and the challengers say State Department and Social Security guidance already asks parents for sworn statements about whether the order covers their child, as laid out in the families’ September lawsuit against the new order.

A birthright citizenship order without a start date

Trump’s first order, signed Jan. 20, 2025, spelled out that it reached children born 30 days after signing. The August order sets no date at all. Cooper asked the government when it took effect and whether a child born on Aug. 4 would be covered, States Newsroom reported. Justice Department attorney Ty Turley Trejo said the administration views the order as taking effect when it is published and said it would not apply to any child born before it was signed. ACLU attorney Lucia Goin told the court the challengers fear the order is retroactive and that children who already hold passports could see the State Department revoke them.

Those answers point to two different dates, signing and publication, and a child born in the gap sits in exactly the uncertainty Cooper flagged. A lawyer’s statement at a hearing also does not bind agencies the way the text of an order or rule does, which is why the families want an injunction rather than reassurance.

Cooper also suggested the government’s reading of the Supreme Court’s June decision was contradicted even by Justice Samuel Alito’s dissent, Law360 reported.

The diplomat exception, stretched

In Trump v. Barbara, decided June 30, the Supreme Court struck down the 2025 order, with Chief Justice John Roberts writing that the children it targeted are “citizens at birth.” The ruling rested on United States v. Wong Kim Ark (1898), which recognized only a handful of exceptions to the Fourteenth Amendment’s Citizenship Clause, chief among them children of foreign diplomats. Unlike the 2025 Supreme Court round over nationwide injunctions, this fight is about who fits inside those old exceptions.

The new order stretches the diplomatic carve-out to employees of foreign governments and international organizations such as the United Nations and the World Bank, according to SCOTUSblog, alongside categories for “alien enemies,” parents who paid to “purchase or access” citizenship, and some U.S. territories. The weak point is immunity: the diplomat exception rests on a parent being outside U.S. jurisdiction, and most international organization staff hold only limited, official-acts immunity. If a court accepts that line of argument, the international organization category is the most exposed part of the order.

Two courts, overlapping families

The case is in Washington because U.S. District Judge Joseph Laplante, who handled Barbara in New Hampshire, suggested on Sept. 10 that the new order needed a separate proceeding, SCOTUSblog reported. Nathan followed on Sept. 28.

In Maryland, U.S. District Judge Deborah Boardman granted a preliminary injunction in CASA v. Trump on Sept. 2, barring enforcement of the new order against a class of children who would have been denied citizenship under the 2025 order. The government has asked her to revoke or pause it, arguing the plaintiffs lack standing because their children were born before the 2026 order, according to SCOTUSblog.

The families protected in the first round are not necessarily the families the August order targets, and that partial overlap is why Cooper asked the challengers whether he should rule now or wait, out of concern that a ruling could be redundant given the Maryland case, States Newsroom reported. How far the classes overlap is not clear from the public record; a child of two temporary workers may already fall inside Boardman’s class, while a surrogacy case may not. Cooper said that if he decides to proceed, he will issue an order soon.

What to watch

Cooper’s ruling: a decision on the preliminary injunction and on certifying a class of children and parents covered by the August order.
Maryland: whether Boardman keeps, narrows or pauses her Sept. 2 injunction in CASA v. Trump.
Agency practice: how DHS, State and Social Security apply the Sept. 4 rule to birth certificate and passport requests meanwhile.
Appeals: any injunction is likely to be appealed, and SCOTUSblog lists the dispute among Trump cases that could return to the Supreme Court.

This article is for general information and is not legal advice.

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 an LL.M. from California Western School of Law, San Diego 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/

Author's website Author's posts