Who Counts as an American Baby Now?

A Supreme Court decision in Trump v. CASA risks chaos, injustice, and the creation of a shadow generation of babies stripped of their birthright citizenship.

Who counts as an American baby now?

This week, the Supreme Court answered that question with chilling uncertainty.

In Trump v. CASA, the Court struck down nationwide injunctions or protections against President Trump’s executive order limiting birthright citizenship. The ruling means that unless parents happened to join the right lawsuit and are named plantiffs – or unless a court approves a class action lawsuit within the matter of weeks – the question of whether a baby is a U.S. citizen at birth will hinge on arbitrary geography, procedural happenstance, and a family’s ability to hire a lawyer.

As the Court considered Trump v. CASA, three interests collided:

1. The fundamental constitutional rights of babies enshrined in the Fourteenth Amendment – rights affirmed by past Supreme Court decisions, federal statutes, federal rules and regulations, and centuries of administrative practice – which are now threatened by chaos and uncertainty.

2. The states’ own interests in avoiding financial and administrative turmoil, as they attempt to determine which newborns qualify for public benefits and services.

3. The Trump Administration’s demand for “emergency relief” to implement its executive order immediately, even if its legality has repeatedly deemed by the courts to be unconstitutional.

Spoiler alert: the Supreme Court ruled for the Trump Administration on limiting injunctions, punted the states’ concerns back to lower courts for further consideration, and all but ignored the constitutional rights of babies.

As Justice Jackson writes in dissent:

Make no mistake: Today’s ruling allows the Executive to deny people rights that the Founders plainly wrote into the Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected. This perverse burden shifting cannot co-exist with the rule of law. In essence, the Court has now shoved lower court judges out of the way in cases where executive action is challenged, and has gifted the Executive with the prerogative of sometimes disregarding the law. As a result, the Judiciary – the one institution that is solely responsible for ensuring our Republic endures as a Nation of laws – has put both our legal system, and our system of government, in grave jeopardy.

The disregard that prioritizes the Executive’s right to impose chaos and harm to the rights enumerated in the Constitution over the protection of those whose rights are violated is stunning and sweeping.

With respect to the harm that can be imposed by Trump’s executive order on birthright citizenship, only people who were able to hire a lawyer and were named plaintiffs in the lower court decisions finding Trump’s executive order to be unconstitutional are protected from harm.

In ruling against nationwide injunctions and protection of nonparties in the litigation, the Court seems to require that every single baby find and hire a lawyer to get a court to individually protect their birthright citizenship claims – unless some sort of class action lawsuit can be successfully litigated within the next 30 days.

As the Supreme Court justices end their term and go off on their scheduled vacations, President Trump has vowed to move forward quickly to begin enforcing his executive order.

The result is absolute chaos, as it is completely unclear which babies may be subjected to a newly imposed bureaucratic maze by the Trump Administration and whether the decision about the citizenship of the roughly 3.6 billion babies born in this country annually will be decided by either:

• The Constitution’s very clear language on birthright citizenship as enforced by some sort of class action lawsuit;

• Individual lawsuits that must be filed to enforce those fundamental rights and protections; or,

• The President’s newly established set of rules, regulations, paperwork, and bureaucracy.

Under Trump’s Citizenship Order, babies born after February 19, 2025, were already put on uncertain footing. But with the Supreme Court’s new decision – and a 30-day window that ends on July 26, 2025 – the Trump Administration is racing to impose these rules nationwide, before any new class action can halt it.

This is not about abstract doctrines. It is about babies being born every single day. It is about how newborns may now face a bureaucratic gauntlet to prove they belong in the country where they took their very first breath. It is about their ability to get a Social Security card, to enroll in Medicaid, to receive WIC or food stamps, or even to stay in the same home and country as their parents.

If nothing changes in the next 30 days, babies would be required to prove citizenship via some currently unknown process with unknown documentation requirements that must be submitted and approved by an unknown bureaucracy at the current moment.

This is the definition of chaos, and it imposes harm on one group of people: BABIES.

Babies cannot hire lawyers or file petitions on their own behalf. Babies are entirely at the mercy of adults, attorney, and a justice system that has seemed to abandon them. Babies who cannot stand up and fight an Executive Branch seeking to deport them, even if on unconstitutional grounds.

Justice Sotomayor writes in her dissent with Justices Kagan and Jackson:

. . .this Court endorses the radical proposition that the President is harmed, irreparably, whenever he cannot do something he wants to do, even if what he wants to do is break the law.

Justice Jackson adds in a separate dissent:

It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior.

Justice Sotomayor points out that stripping the courts of the ability to impose an injunction in this case prevents the courts from:

. . .protect[ing] newborns from the exceptional, irreparable harm associated with losing a foundational constitutional right and its immediate benefits.

That is the right of citizenship.

Sotomayor continues:

. . .the Citizenship Order is patently unconstitutional. To allow the Government to enforce it against even one newborn child is an assault on our constitutional order and antithetical to equity and public interest. . .

Justice Sotomayor adds that the President’s executive order risks the creation of a “shadow population” of children who are stateless and unable to obtain the most basic of public services to maintain their health and safety.

Before a class action suit is able to be heard and ruled upon favorably, millions of children may be subjected to the President’s executive order, even though every Court that has reviewed it has declared it unconstitutional. The Trump Administration has lost every single decision. And yet, the losers in Trump v. CASA were, in the end and by omission, babies.

As Justice Sotomoyer points out, the roughly 3.6 million babies born in this country who may be required to individually apply for citizenship, there is a possibility of mistake by the bureaucracy in making citizenship determinations based on the status of biological parents.

For example, if there is a 3% error rate in the case of 3.6 million citizenship applications, over 100,000 babies could have their citizenship status incorrectly determined. As to who these kids will more likely be, Justice Jackson notes that it is “unlikely to impact the public in a randomly distributed manner.”

The babies and their families most likely harmed will be, according to Justice Jackson:

. . .the poor, the uneducated, and the unpopular – i.e.,, those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive’s whims.

Incredibly, the Supreme Court majority is placing the onus of protecting rights on babies, who literally have no ability to defend themselves.

Justice Kavanaugh argues this will “bring substantially more order and discipline to the ubiquitous preliminary litigation over new federal statutes and executive actions.” That depends on the perspective because no argument can be made that there is more order or discipline for babies across this country with regard to this ruling.

With this ruling, Justice Kavanaugh points out that the Supreme Court is now the “ultimate decisionmaker” and that it may take a “several-year period” before a case is heard by the Supreme Court and a final decision is reached “on the merits.”

In a separate opinion not signed by any of the other justices, Justice Kavanaugh suggested the Court consider issuing emergency “stays or injunctions with respect to major new federal statutes and executive actions.” However, Court majority, in which he was a party, pointedly failed to do so here, leaving newborns in potential jeopardy in the matter of days.

Consequently, unless a class action is formed and decided within the next month or the Supreme Court justices end their vacation plans and decide to issue an interim “stay or injunction,” the burdens placed on babies and their families by forthcoming Trump Administration actions will likely not be temporary and could stretch on for years.

How and Why This All Matters to Newborns

By dismantling nationwide injunctive relief, the Court has left each baby’s birthright subject to the roll of procedural dice. As if to prove how backward this is, the majority opinion carefully explored whether states might still qualify for broader injunctions to avoid bureaucratic headaches – but gave barely a passing glance to the far deeper harm done to newborn children, who now stand to be dispossessed of their most fundamental constitutional legal identity before they can even form words to protest.

As noted above, President Trump has vowed to move forward to implement this nightmarish scenario on babies as quickly as possible.

Unfortunately, babies cannot hire lawyers themselves. They cannot walk into court. They cannot file a complaint to defend their citizenship, their own lives, and their future. They must depend on the adults around them – parents, nonprofit organizations, overstretched attorneys, and even the Supreme Court – to fight for what the Constitution promises them by birth.

They were failed by this decision.

The Babies at the Heart of this Crisis

Consider two babies, born minutes apart on opposite sides of a state line. Both let out the same fragile wail, take the same first breath of American air, but because one mother happened to join a lawsuit and the other did not, one baby leaves the hospital with unquestioned U.S. citizenship and the other enters a maze of doubt, paperwork, and looming threats of deportation.

The sheer randomness is staggering, and the harm starts immediately. Many hospitals rely on birth certificates to enroll newborns in early Medicaid, which pays for vital screenings and vaccinations. Without clear citizenship or documentation, these babies could be left uninsured through their first year of life, which puts their lives at increased risk.

Birthright citizenship has been standard practice for centuries and enshrined in the Constitution since 1868. And yet, this constitutional promise – once clear and absolute – may soon become a matter of documentation, interviews, and bureaucratic discretion.

Just a few years ago in the Supreme Court’s Dobbs decision, the Court gave states sweeping power to impose severe restrictions on reproductive health care services and to force childbirth.

Now, astonishingly, the Court offers no clear guarantee that babies born from these pregnancies will even by recognized as citizens, including the increasing number of children placed in either private adoption or the foster care system and have no means of proving their biological parents’ citizenship status.

While the Supreme Court ignored the impact on babies themselves, they did acknowledge that the states might incur administrative headaches tracking which children are citizens and which are not as opposed to the impact their ruling will have on babies. In the majority opinion written by Justice Barrett, the Court offers the prospect that perhaps states could still seek injunctions to protect their balance sheets and avoid the administrative headaches of tracking uncertain citizenship.

But for the babies themselves, the majority offered limited refuge (e.g., class action lawsuits): effectively telling newborns they may need to wait years or depend on the bureaucratic maze they will potentially be subjected to for their constitutional guarantee. Babies are guaranteed birthright citizenship in the Constitution, but it is the states that may be granted relief first.

The Moral Urgency: Why Babies Should Not Bear the Burden of Legal Abstractions

This is certainly not the first time we’ve confronted how American systems fail children. Justice Barrett’s majority opinion speaks in cold, restrained terms about “historical pedigrees of equitable relief” and the technical boundaries of “complete relief.” Justice Thomas scoffs at the idea of protecting anyone beyond the parties before the court, writing that universal injunctions are merely “novelties” of modern litigation. Justice Alito worries about judicial power run amok.

But nowhere in these opinions do we see a genuine reckoning with what this may mean for an actual baby: a child who may go without early health screenings, who may not receive a Social Security number needed for basic identity and economic participation, who may someday grow up under the specter of deportation from the only country they’ve ever known.

As we’ve said here time and time and time and time again: children are invisible in our policy debates because they cannot advocate for themselves. This decision reveals the same moral blind spot in our highest court. We have constructed a system where infants must rely on the happenstance of adult litigation to secure their constitutional birthright.

What Needs to Happen Now: Reclaiming Birthright as a Promise to All Babies

It does not have to be this way. The Constitution is clear. The Fourteenth Amendment’s Citizenship Clause was written precisely to end any question about who belongs. It guarantees that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The Birthright Citizenship Clause was meant to sweep away the cruel indignities of Dred Scott and forever establish that the accident of birth on American soil makes one an American, full stop.

And we should be clear: this is not a fringe concern. A national poll conducted just this past April found that 62% of Americans support maintaining birthright citizenship, with only 30% opposed.

This overwhelming support cuts reveals a deep, intuitive belief that if a baby is born here, they belong here. To strip away that promise for newborns — to make their constitutional status hinge on bureaucracy or political whim — is not only a betrayal of the Constitution, it defies the values that unite most Americans.

Yet here we are, more than 150 years later, forced to organize emergency class actions to defend that guarantee for infants who cannot so much as hold their own heads up. If ever there were a time to rise above abstract debates about injunctions and “historical analogues,” it is when we are talking about the basic identity of our babies.

What needs to happen?

• Class certification must move forward immediately. Courts should not hesitate to recognize that this is precisely why Rule 23 exists – to protect large, vulnerable groups who cannot feasibly each file suit on their own. There is no more compelling case for class-wide relief than a cohort of infants whose constitutional rights are at stake before they can even walk.

• The Supreme Court must take action NOW to reaffirm birthright citizenship. The Citizenship Clause should be insulated from shifting executive orders and political maneuvers. If politicians want to change the Constitution’s birthright citizenship clause, they should do what the Constitution requires and seek a Constitutional amendment.

• State officials and hospital systems must stand ready. Governors, attorneys general, and local registrars should pledge not to withhold documentation and benefits from newborns, even under pressure from federal agencies, until these profound constitutional questions are resolved.

• And all of us must keep speaking out. This is not merely a legal fight. It is a test of our national character and a defense of fundamental rights. If we cannot secure the rights of babies – children who have violated no laws and have done nothing but be born – we have abandoned the very notion of basic fairness that holds a democracy together.

Babies’ Lives Should Never Hang on Procedural Lotteries

Because in the end, what kind of country lets its newborns’ futures hinge on who happened to file a lawsuit first? What kind of country treats citizenship – the fundamental right to belong – as a benefit to be rationed based on whether a family could navigate court deadlines or afford an immigration lawyer?

If we measure our society by how we treat the smallest, the weakest, the utterly voiceless, then today we are failing. The Supreme Court’s decision has created a dangerous, chaotic patchwork that leaves babies’ lives to the mercy of procedural happenstance.

But we do not have to accept this.

We can press our lawmakers, our courts, and our communities to insist on a basic, unshakable promise: that every child born here is one of us. That no baby’s right to be American is contingent on a docket number, a judge’s clerical order, or a federal bureaucrat’s checklist. In America, every baby should count.

If you would like to help ensure that children and their needs, concerns, and best interests are protected and not ignored by policymakers, please consider joining us as an “Ambassador for Children” or becoming a paid subscriber to help us continue our work on behalf of children.