Biden Judge Blocks Trump’s Second Birthright Order After Supreme Court Already Ruled

U.S. District Judge Deborah Boardman in Greenbelt, Maryland, issued a preliminary injunction Wednesday blocking key parts of President Trump’s Aug. 6 executive order that sought to deny birthright citizenship in cases of birth tourism, commercial arrangements to give birth in the United States, children of certain foreign-government employees, fraud, and parents classified as “alien enemies.” Boardman, a Biden appointee, wrote that the order “is almost certainly unconstitutional as applied to the certified class for the simple reason that the Supreme Court in Barbara already decided that the children in the class are citizens at birth.” “The Supreme Court has spoken,” she added. “Barbara is the law of the land. The President must follow it.” The injunction covers children born after Feb. 19, 2025, the class certified in the earlier challenge, including future births in that group. It directs the State Department, Homeland Security, and the Social Security Administration not to deny or refuse to recognize citizenship documents for those children. It does not wipe out the entire order nationwide.

The Supreme Court held 6–3 in June in Trump v. Barbara that children born in the United States to parents who are unlawfully present or here on temporary visas are “citizens at birth” under the Fourteenth Amendment’s Citizenship Clause—“subject to the jurisdiction thereof.” That decision invalidated Trump’s broader Jan. 20, 2025, order. The August order was narrower. The White House framed it as closing gaps the Court left open, including women who enter on nonimmigrant visas for the purpose of giving birth so the child obtains citizenship. Justice Department lawyers told Boardman the new directive filled those openings and was not a rerun of the 2025 order. Boardman called that a “distorted interpretation.” She wrote that “no matter what the guidance says, the 2026 Executive Order commands agencies to deny citizenship documents to several broad categories of children,” and that “no Presidential Executive Order can undo what the Supreme Court has done.” Last Friday she refused a temporary restraining order because the existing complaint did not name the August order; she allowed an amended complaint and a fast briefing schedule. Plaintiffs include CASA and the Asylum Seeker Advocacy Project, the same groups that obtained her earlier block of the 2025 order.

The Citizenship Clause has been read, since United States v. Wong Kim Ark in 1898, to confer citizenship on nearly all persons born on U.S. soil except limited historical categories such as children of diplomats and of occupying enemy forces. Trump has argued that illegal presence and birth tourism fall outside “jurisdiction.” The Court rejected the first version of that theory in Barbara. Boardman’s 35-page opinion treats the new carve-outs as an attempt to reach the same children the Court already placed inside the Clause. The administration can appeal to the Fourth Circuit and, if necessary, seek another Supreme Court review. Agency implementation guidance that had been expected around Sept. 5 cannot be applied to the certified class while the injunction stands.