Pennsylvania is one of 28 states in a legal limbo after SCOTUS birthright ruling. What happens now?

Pennsylvania is one of 28 states at risk of losing birthright citizenship pending further litigation in the next month after a Supreme Court decision Friday that limits the ability of federal judges to halt President Donald Trump’s executive orders.

The decision creates the potential scenario in which children born to some immigrant parents on the New Jersey side of the Delaware River will have citizenship while those born on the Pennsylvania side will not.

The justices did not rule on the constitutionality of Trump’s move to end automatic birthright citizenship, a right that has existed for more than 150 years through the 14th Amendment, but ruled that federal judges had overstepped in applying an injunction in a case filed by 22 states to the entire nation. Legal experts widely say Trump’s executive order appears to be unconstitutional, despite his procedural victory.

Pennsylvania Attorney General Dave Sunday, a Republican, did not join the original lawsuit brought by states with Democratic attorneys general, including New Jersey and Delaware. His office did not respond to a request for comment Friday.

Gov. Josh Shapiro, in a brief statement, said his administration was “evaluating next steps.”

“As I’ve shown time and time again — previously as Pennsylvania’s Attorney General and now as Governor — I won’t hesitate to go to court against anyone trying to take away Pennsylvanians’ constitutional rights or harm our Commonwealth.”

The Supreme Court, in its 6-3 decision, stopped Trump’s order from taking effect for 30 days, leaving room for potential legal challenges. A group of plaintiffs filed a class-action suit in Maryland minutes after the decision came down. If the suit is successful, it could prevent the order from taking effect in states like Pennsylvania that have not already challenged it.

“Barring further intervention by the Court, next month there will be children who will be citizens if they are born in Delaware, but if born in another state, might not be,” Sen. Chris Coons (D., Del.) said in a statement slamming the ruling. “This is as wrong as it is cruel. The Court has unleashed chaos and confusion. Children, their families, and our nation will pay the price.”

More broadly, the ruling on nationwide injunctions limits a tool courts had to address possible illegal government actions and provide immediate protections while empowering the Trump administration to more aggressively pursue its domestic agenda.

Trump at the White House on Friday called the decision “monumental” for “the constitution, the separation of powers and the rule of law.”

He said, without evidence, that birthright citizenship was being taken advantage of by thousands of people “trying to scam the country.”

Advocates worried that revoked birthright citizenship would further marginalize immigrant communities.

“These attacks on birthright citizenship send a clear message to the children of immigrants: You are not welcome here,” said Mel Lee, the executive director of the Lansdale-based Woori Center which advocates for Asian Americans.

Trump’s January executive order, “Protecting the Meaning and Value of American Citizenship,” excludes infants from the right to U.S. citizenship if they are born to a mother who is unlawfully in the country and a father who is not a citizen or permanent resident. It also excludes infants born to a mother who is authorized to be in the country for a temporary period of time, including people in the United States with a work, student or tourist visa, if the father is not a U.S. citizen or permanent resident. It’s unclear how it would apply to the children of LGBTQ+ couples or single moms.

The executive order was immediately challenged by the 22 states with Democratic attorneys general.

Sunday and other Republican attorneys generals were slammed by their Democratic peers in a virtual news conference convened Friday by New Jersey Attorney General Matt Platkin, whose office led the case for the Democratic states.

“The red state AGs are not fighting for the rights of their people,” California Attorney General Rob Bonta said on the call.

The moment now puts Shapiro, one of the few Democratic governors in a state with a Republican attorney general, in the spotlight. Shapiro, a potential presidential contender in 2028, had not intervened in the birthright case, despite mounting other legal fights against Trump.

The governor’s office would likely need to establish grounds for suing on behalf of the state government in the birthright case. Shapiro has sued the Trump administration for slashing previously awarded federal funding, and federal cuts to Pennsylvania schools and food banks.

He said in a statement Friday that the Supreme Court decision “does not change our commitment to defending our interests and the people of Pennsylvania.”

Cary Coglianese, a law professor at the University of Pennsylvania, said the ruling essentially upends the way the judicial system has worked for years. While he said litigants still have time to gain injunctions in the 28 states subject to the birthright citizenship order, he said the process is longer and more complicated — it leaves an opening for the federal government to enforce unconstitutional rules while an issue works its way through courts.

There are several legal paths by which states outside of the injunction could wind up included in it.

If the Maryland plaintiffs can certify its class-action lawsuit filed Friday, undocumented parents, or those here on visas in Pennsylvania would be covered under its case even if the state does not pursue its own case.

The Supreme Court didn’t fully invalidate nationwide injunctions, but it did narrow their use to specific circumstances. Peter Spiro, a professor at Temple Law, said it’s possible the lower court could reissue the nationwide injunction arguing this case meets that criteria.

The 22 states that initially sued could also argue in court that their residents will be harmed if a patchwork of birthright citizenship rules is instituted across the county.

To remedy that, a court could rule that there needs to be a nationwide injunction, according to Alicia Bannon, judiciary program director at the Brennan Center.

As news of the decision broke, expectant parents and immigrant advocates contemplated a future where birthright citizenship is revoked in some places.

“There could be children who are left sort of stateless because it’s unclear based on the laws of the United States and their home countries what their citizenship is,” said Emma Touhy, president of the Philly chapter of the American Immigration Lawyers Association.

Stateless infants, Spiro said, will make up a small but not nontrivial minority of children born to noncitizens. But he predicted chaos if the executive order is allowed to take effect even for a matter of weeks. The federal government could deport parents and babies, he said, and parents here on a visa could find themselves with no clear pathway toward legal status for their newborn.

“This decision poses the possibility of some very messy dynamics on the ground,” he said.

Attorney General Pam Bondi, at a news conference at the White House Friday, provided few details when asked how citizenship would be verified. Would nurses and doctors be on the hook for looking at paperwork?

“This is all pending litigation,” Bondi said, referencing a possible Supreme Court ruling on the constitutionality of the executive order that could come in the fall. “It’s going to be decided in October and we’ll discuss that after the litigation.”

Asked if the administration would prioritize deporting undocumented babies, Bondi replied, “The violent criminals are the priority.”

The ruling immediately sparked outrage from Democrats and immigrant rights groups who warned of the limbo it could create for families in Pennsylvania.

Norristown-based ACLAMO, which serves Hispanic and Latino families in the area, including many immigrant parents with U.S.-born children, is bracing for increased demand for legal services and mental health and wellness support as families cope with the uncertainty.

“Any uncertainty around this protection could create confusion and fear, limit access to essential services like healthcare and education, and increase mistrust in public systems,” Beatriz Gasiba, the interim director of the organization, said in an email.

Chris Casazza, a Philly-based immigration attorney, is telling his clients that nothing is certain regarding the fate of birthright citizenship but he’s optimistic.

Casazza is convinced that within the next 30 days a judge will have the opportunity to rule on a nationwide class-action lawsuit and will enjoin Trump’s order.

“I would honestly be very surprised if it ever went into effect,’ Casazza said of Trump’s executive order.

If that doesn’t occur, Casazza said, the result would be “mayhem” as residents face different citizenship laws depending upon what state they live in.

Staff writers Rob Tornoe and Aliya Schneider contributed reporting.