Not since before the passage of the Fourteenth Amendment has an American child’s citizenship depended on the state in which they were born or reside. Until now.
In Trump v. CASA, the Supreme Court held that federal district courts generally lack the authority to issue “universal” injunctions. The majority cast the decision as a narrow procedural ruling, sidestepping the merits of the underlying dispute concerning the Trump administration’s executive order seeking to restrict the right to birthright citizenship under the Fourteenth Amendment. However, the decision destabilizes foundational principles of our constitutional order and upends how we define who belongs to the American political community.
Tucked into Justice Sotomayor’s dissent is the decision’s most alarming consequence: that, for the first time in modern history, children born on American soil may be rendered stateless. As she warns, the threat of statelessness “hangs like a guillotine” over the birthright citizenship litigation.
While litigants are pursuing all available procedural avenues left open by the Court, the likelihood that the birthright citizenship order will take effect in some parts of the country has now sharply increased. If it does, thousands of children around the country will be born into legal uncertainty, without a recognized claim to U.S. citizenship, and may be rendered stateless. In other words, they would enter the world as a citizen of no nation, a child without a country. This status will not only curtail their access to basic services and rights that citizenship provides but may also, in the words of Hannah Arendt, forever render them to an existence “beyond the pale of the law.”
Statelessness in the United States
Statelessness, while relevant domestically, is ultimately a legal status under international law. Under the 1954 Convention Relating to the Status of Stateless Persons, a “stateless person” is “a person who is not considered a national of any State by operation of its law.” While the United States is not a party to this convention, this definition is widely accepted to be reflective of customary international law. In addition to the statelessness conventions, the right to a nationality is central to the prevention of statelessness. It is enshrined in the Universal Declaration of Human Rights, which the United States was central to negotiating, and the right of every child to acquire a nationality is protected in the International Covenant on Civil and Political Rights, to which the United States is a party.
U.S. law does not contain a definition of a stateless person, nor does it have a formal process for identifying or protecting stateless individuals. While there have been efforts to introduce legislation that would provide a definition and some amount of legally protected status to stateless persons within our borders, the most recent of which was in 2024, these efforts have failed. Absent effective legislation, the Biden administration amended the U.S. Citizenship and Immigration Services (USCIS) policy manual to include guidance applicable to stateless persons that would have provided a pathway to potential limited status, including the ability to work and travel. However, the Trump administration rescinded this guidance in June of this year.
Because the U.S. lacks a legal or policy framework for statelessness, we do not have accurate statistics on how many stateless people are currently living in the United States. The most comprehensive study undertaken to date estimates that there are approximately 218,000 people in the United States currently stateless or at risk of statelessness. These are individuals who may have been present in the United States when their former state of citizenship dissolved and they did not qualify for citizenship status in their successor state or they may be stateless refugees from other countries, such as the Rohingya from Myanmar or Dominicans or Bahamians of Haitian descent.
Prior to the court’s ruling, children born to parents who are stateless or at risk of statelessness would not inherit their parents’ status. That is because the United States, like nearly every other country in the Americas, allows for the acquisition of citizenship based on the principle of jus soli (the right of the soil) without any further demonstration of length of stay or legality of status by a non-citizen parent. Around the world, 43 percent of countries offer some form of birthright citizenship based on jus soli.
That principle, enshrined in the Fourteenth Amendment and central to American identity, has allowed prior administrations to conclude that the United States “does not contribute to the problem of statelessness.” Should the birthright citizenship order go into effect, even on a limited basis, that claim would no longer hold. While many other countries offer citizenship to children born in their territory who would otherwise be stateless, the United States does not absent the Fourteenth Amendment and there appears to be no plans to implement such protection should the birthright citizenship order take effect.
If children born on American soil no longer universally qualify for U.S. citizenship, those deemed ineligible would need to determine if they qualify for citizenship of another country through one or both of their parents in order to avoid being rendered stateless. However, not every country offers citizenship to children born to citizen parents abroad. Even among those that do, some citizenship laws might require that both parents be citizens of that country, or place stringent requirements on residency within the country prior to the acquisition of citizenship.
This is not to say that all impacted children, or even most, will be rendered stateless. For example, Mexico considers a child born abroad to a Mexican mother or a Mexican father to be a Mexican citizen by birth. So, a child born in the United States to Mexican citizen parents who were not legal permanent residents would not automatically be rendered stateless. While those who end up truly stateless and not simply at risk of statelessness might be the minority of children born under a fragmented birthright citizenship regime, the number of children impacted will not be insignificant. As detailed below, the risks to these children may be severe, particularly under this administration.
Implications of Trump v. CASA
As I detail in my forthcoming article, Birthright Citizenship, Denaturalization, and the Specter of Statelessness, the Trump Administration is greatly increasing the risk that individuals born on our soil and naturalized in this country will be rendered stateless. The risk is most acute if the birthright order is ultimately upheld nationwide, but, in the meantime, the consequences of the Supreme Court’s decision are already unfolding.
During oral argument the Solicitor General for New Jersey, Jeremy Feigenbaum, explained how citizenship might work should the court issue a decision like it did in Trump v. CASA and deny nationwide relief while the case proceeds on the merits. Rather than having a consistent nationwide standard that would apply universally to all persons born on U.S. soil, as citizenship laws work in every other country and have worked in this country for over 150 years, a person’s citizenship status would work like an on-off switch depending on which state they happened to be born in or where they were currently located. As states litigating the case warned, this creates confusion in determining eligibility for federal benefits and services such as Medicaid. For parents facing the prospect of a patchwork of laws, it raises a more existential question: whether or not their child is a citizen at all.The government conceded during oral argument that no guidance had been drafted for how any of this would work should the court limit nationwide injunctions, as it has done, and the birthright citizenship order go into effect even on a partial basis. Since the decision, the government has only revealed that July 27, 2025 is the earliest date on which the Executive Order will be applied and the government may now “immediately begin ‘to develop[] and issu[e] public guidance about the Executive’s plans to implement the Executive Order,” without revealing what that guidance will be. It is unclear if parents will have to prove citizenship status before a child will be issued a birth certificate in states that are not contesting the law, or if all children will continue to receive birth certificates but they will no longer be sufficient on their own to demonstrate citizenship status. This is crucial for the issue of statelessness as the lack of or loss of official documents such as a birth certificate, in and of itself, can be a risk factor or cause of statelessness. A birth certificate is often essential to establish eligibility for citizenship even outside of the United States as it contains key information such as the names of parents and date and location of birth. Without it, a child may be unable to demonstrate they are eligible for citizenship in their non-citizen parents’ home country. If the administration decides that children may not be issued birth certificates without parents first providing proof of citizenship or legal permanent residence, they may be rendering even more children at risk of statelessness.
Either way, this will not just impact children of non-citizens or undocumented immigrants. Every new parent residing in areas in which the injunction against the executive order is not in effect would have to comply with whatever guidance the federal government issues in the next 30 days. This could mean that every new parent has to comply with the types of processes that regularly impact U.S. citizen parents who give birth while living abroad. Gathering the proper documentation and filling out the appropriate paperwork to demonstrate your child is in fact a U.S. citizen could cost every new parent several thousand dollars. Any delays in processing the paperwork may mean that the children are unable to access healthcare or crucial services or may leave them in a state of legal limbo with respect to their citizenship status. For those parents currently pregnant and preparing to give birth, that 30-day clock is ticking loudly.
The CASA ruling becomes even more dangerous when read alongside Department of Homeland Security (DHS) v. D.V.D. As the three liberal justices noted in dissent and was made clear by the subsequent order on a motion for clarification, the unsigned orders have paved the way for the government to deport non-citizens, including stateless persons, to third countries to which they have little or no connection. In practice and as a result of these orders, this can be done without meaningful notice or opportunity to be heard, even when the individual has grave protection concerns under the Convention Against Torture. Even if an earlier removal order could not be executed, the administration can now designate a new third country without having to follow the required initial process.
The practice described in DHS v. D.V.D. is starkly different from what is typical for a stateless person facing immigration detention and removal. People facing removal proceedings are most likely to be removed to their country of nationality unless there are compelling protection concerns that warrant withholding of removal, such as a well-founded fear of persecution or torture. Stateless people, on the other hand, lack a country of nationality to designate as a destination upon removal. There is no obligation for any country to accept a person who is not its own national, so it is often the case that stateless persons are unable to designate a country for removal willing to accept them. In those circumstances, it is often the case that the government will be unable to rebut a finding that “removal is no longer reasonably foreseeable” for a stateless person and indefinite detention would be unconstitutional under Zadvydas v. Davis. Stateless persons are frequently paroled into the country and placed under strict supervision rather than detained or deported.
Under the Trump administration’s posture and in light of D.V.D., even those minimal safeguards will likely disappear. The underlying policy at issue in D.V.D. specifically targets “aliens previously released due to no significant likelihood of removal in the reasonably foreseeable future,” which is the likely situation for a significant portion of stateless persons found to be removable. It highlights “the potential for third country removals” as a reason to arrest non-citizens who were released after removal was previously found to be not reasonably foreseeable. Non-citizens now face deportation to countries to which they have no connection, often with serious risk to their lives. Indeed, the Supreme Court’s order on Friday paved the way for the government to remove eight men to South Sudan, a country in the middle of a civil war, without an opportunity to assert a fear of torture or death in contradiction of federal and international law.
It will no longer matter if stateless children have no country to designate for removal if the administration can rapidly deport them to a third country to which they have no connection without due process. As pointed out by Justice Sotomayor, the consequences potentially awaiting infants and their parents subject to the executive order are heartbreaking. “If allowed to take effect, the Order may even wrench newborns from the arms of parents lawfully in the United States, for it purports to strip citizenship from the children of parents legally present on a temporary basis. Those newborns could face deportation, even as their parents remain lawfully in the country.”
If a child is deported before it is able to establish citizenship in the United States or elsewhere, especially if it is deported without its parents to a third country to which it has no connection, it may be relegated to a lifetime of statelessness. Without proof of nationality, and with no memory of their parents’ citizenship, they may never be able to claim a home country at all. This may sound dystopian, but for an administration that brought us family separation and shows no hesitation in targeting the most vulnerable among us, it is chillingly plausible.
Some commentators have argued that courts may still be able to issue types of nationwide relief in this case, particularly if states can show they are unable to obtain “complete relief” without a universal injunction. This may prove true. But until then, and especially given the Trump administration’s style of “deport first, ask questions later,” the risk to non-citizen children, particularly those who may be rendered stateless, is real and urgent.
