A federal judge appointed by Joe Biden has halted President Trump's second attempt to narrow birthright citizenship, ruling the executive order "almost certainly unconstitutional", and the White House is vowing to take the fight back to the Supreme Court.
U.S. District Judge Deborah Boardman issued a 35-page preliminary injunction Thursday from the District of Maryland, blocking enforcement of Trump's August executive order titled "Continuing to Protect the Meaning and Value of American Citizenship." The order had sought to deny automatic citizenship to U.S.-born children of foreign terrorists, members of designated foreign terrorist organizations, employees of foreign governments, and those who lobby on behalf of foreign governments, Breitbart News reported.
Boardman, whom Biden placed on the bench in 2021, grounded her ruling in the Supreme Court's 5-4 decision in Trump v. Barbara, handed down June 30. That ruling held that children born on American soil to parents who are in the country illegally or on temporary visas are "citizens at birth" under the Fourteenth Amendment. Boardman treated that precedent as a closed door, and said Trump walked straight into it again.
The judge did not hold back in her written opinion in CASA v. Trump, Case No. DLB-25-201. She framed the new executive order as a second run at the same constitutional wall the administration hit in June.
In her ruling, Boardman wrote:
"The 2026 Executive 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. This Court must, once again, preliminarily enjoin enforcement of the President's most recent attempt to strip the right to citizenship from them."
That phrase, "once again", signals this is not the first time Boardman has blocked a Trump birthright citizenship order. The preliminary injunction carries more legal weight than the temporary restraining order previously issued by Reagan-appointed Judge John Coughenour in Seattle, making Boardman's ruling the most significant judicial obstacle the policy has faced since the Supreme Court weighed in. National Review noted that 22 Democratic-led states have filed legal challenges against the executive order, a sign that the courtroom resistance is broad and coordinated.
Boardman went further in a separate passage, emphasizing the binding force of the high court's June ruling:
"The Supreme Court has spoken: Children in the certified class are 'citizens at birth.' Barbara is the law of the land. The President must follow it. The plaintiffs have established a strong likelihood of success on the merits of their claim that the 2026 Executive Order violates the class members' Fourteenth Amendment right to citizenship."
The pattern of Biden-appointed judges intervening against Trump's immigration agenda has become a defining feature of his second term. One federal judge overturned a Trump immigration policy covering 39 countries in a sweeping 135-page ruling earlier this year, illustrating how lower courts have repeatedly served as chokepoints for executive action on immigration.
The administration crafted its August executive order as a narrower follow-up to the original birthright citizenship order the Supreme Court struck down. Where the first order broadly targeted children of illegal immigrants and temporary visitors, the revised version focused on categories the White House believed fell outside the Court's ruling: children of designated foreign terrorists, alien enemies, employees of foreign governments, and those involved in birth tourism, the practice of traveling to the United States specifically to give birth on American soil.
The Department of Justice argued the new order was built around narrow exceptions the Supreme Court had left open. Boardman rejected that defense outright. She called the DOJ's reading of the Barbara decision a "distorted interpretation" of what the justices actually held, the Washington Examiner reported. Before allowing plaintiffs to revise their lawsuit, Boardman had already expressed skepticism of the new order and called it "unprecedented."
The injunction applies to children born after February 19, 2025, and covers the certified class of plaintiffs in the Maryland case. Whether its practical reach extends beyond that class, or whether other courts will issue similar orders, remains an open question.
The judicial resistance has not been one-directional, however. In August, Biden-appointed judges on the First Circuit sided with Trump, reversing lower court orders that had blocked terminations of Temporary Protected Status. And federal courts have also cleared the administration to end deportation protections for nationals of Burma and South Sudan. The legal landscape is not uniformly hostile to the president's immigration agenda, but on birthright citizenship, the losses keep stacking up.
The administration did not accept the ruling quietly. White House spokeswoman Lauren Bis called Boardman an "activist judge" and insisted the executive order was legally sound. Fox News reported her statement defending the order's consistency with the Supreme Court's analysis.
Bis said:
"The birthright citizenship executive order is consistent with the holdings and analysis set forth by the Supreme Court."
Attorney General Todd Blanche went further, signaling the administration would not stop at the district court level. He told reporters the executive order had been deliberately crafted around the Supreme Court's language and that the administration was prepared to escalate.
"We crafted the EO around and in concurrence and understanding with what the Supreme Court said in their decision... if we have to go back to the Supreme Court, we will."
That promise sets up a potential second Supreme Court showdown over birthright citizenship within a single calendar year, a remarkable pace for constitutional litigation of this magnitude. The Supreme Court has already weighed in on related immigration disputes this term, and the justices may soon be asked to draw finer lines around the Fourteenth Amendment's citizenship guarantee.
The 5-4 split in Trump v. Barbara left a substantial dissent on the table. Justice Clarence Thomas wrote the principal opinion for the four-justice minority, arguing that the Fourteenth Amendment's original meaning did not guarantee citizenship to every person born on U.S. soil regardless of parental status.
Thomas focused on the amendment's language requiring that citizens be "subject to the jurisdiction" of the United States, a phrase he read as excluding children of foreign temporary visitors "who were subject to the power of their home nation." His dissent argued that the amendment's framers understood "not subject to any foreign power" as a meaningful limitation, not a formality.
That argument mirrors the legal theory behind both of Trump's executive orders. The administration has consistently maintained that the Fourteenth Amendment does not require the United States to grant automatic citizenship to children born to parents who have no permanent legal ties to the country. But the five-justice majority in Barbara disagreed, and Boardman treated that disagreement as settled law.
Boardman's opinion noted that the executive order "conflicts with the plain language of the 14th Amendment, contradicts 125-year-old binding Supreme Court precedent and runs counter to our nation's 250-year history of citizenship by birth." She added that no court in the country has ever endorsed the president's interpretation of the citizenship clause, and that her court would not be the first.
The broader pattern of federal courts intervening in Trump-era immigration enforcement shows no sign of slowing. From deportation protections to visa policies to citizenship itself, the judiciary has become the primary arena where the administration's immigration agenda lives or dies.
The preliminary injunction will likely remain in place until a higher court acts. The administration's pledge to return to the Supreme Court means the justices who split 5-4 in June could face a second test of the same constitutional question, this time with the narrower framing the White House believes distinguishes the revised order from the one the Court already rejected.
Whether the justices see a meaningful difference between the two orders is the central legal question ahead. Boardman clearly does not. She read the revised order as the same policy in different clothes and blocked it on the same grounds.
For the administration, the path forward runs uphill through the same Court that already ruled against it. For the 22 states and advocacy groups lined up on the other side, every district court injunction buys more time. And for the children born in the middle of this legal dispute, their citizenship hangs on how nine justices read a clause written in 1868.
When the Supreme Court speaks and the executive branch responds by testing the same boundary again, the courts will keep answering. The question is whether the administration is looking for a different answer, or a different question.