United States Court of Appeals
                        For the First Circuit


No. 25-1170

  STATE OF NEW JERSEY; COMMONWEALTH OF MASSACHUSETTS; STATE OF
 CALIFORNIA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF
   DELAWARE; DISTRICT OF COLUMBIA; STATE OF HAWAI'I; STATE OF
   MAINE; STATE OF MARYLAND; ATTORNEY GENERAL DANA NESSEL, on
 behalf of the People of Michigan; STATE OF MINNESOTA; STATE OF
 NEVADA; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH
  CAROLINA; STATE OF RHODE ISLAND; STATE OF VERMONT; STATE OF
          WISCONSIN; CITY AND COUNTY OF SAN FRANCISCO,

                        Plaintiffs, Appellees,

                                  v.

 DONALD J. TRUMP, in his official capacity as President of the
  United States; U.S. DEPARTMENT OF STATE; MARCO RUBIO, in his
  official capacity as Secretary of State; U.S. DEPARTMENT OF
  HOMELAND SECURITY; KRISTI NOEM, in her official capacity as
 Secretary of Homeland Security; U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES; ROBERT F. KENNEDY, JR., in his official capacity
as Secretary of Health and Human Services; U.S. SOCIAL SECURITY
ADMINISTRATION; LELAND DUDEK, in his official capacity as Acting
  Commissioner of Social Security; UNITED STATES OF AMERICA,

                       Defendants, Appellants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Leo T. Sorokin, U.S. District Judge]


                                Before

                        Barron, Chief Judge,
                Rikelman and Aframe, Circuit Judges.
     Yaakov M. Roth, Acting Assistant Attorney General, Eric D.
McArthur, Deputy Assistant Attorney General, Mark R. Freeman,
Sharon Swingle, Brad Hinshelwood, and Derek Weiss, Attorneys,
Appellate Staff, U.S. Department of Justice, on brief for
appellants.
     Jonathan Skrmetti, Attorney General & Reporter, J. Matthew
Rice, Solicitor General, and Whitney D. Hermandorfer, Director of
Strategic Litigation, on brief for State of Tennessee, amicus
curiae.
     R. Trent McCotter, Boyden Gray PLLC, Daniel Z. Epstein,
America First Legal Foundation, George W. Vien, Pietro A. Conte,
and Donnelly, Conroy & Gelhaar, LLP on brief for Members of
Congress, amici curiae.
     William J. Olson, Jeremiah L. Morgan, William J. Olson, P.C.,
Jeffrey C. Tuomala, Rick Boyer, and Integrity Law Firm on brief
for America's Future, Gun Owners of America Inc., Gun Owners
Foundation, Citizens United, U.S. Constitutional Rights Legal
Defense Fund, Leadership Institute, and Conservative Legal Defense
and Education Fund, amici curiae.
     Judd E. Stone II, Christopher D. Hilton, Ari Cuenin, Cody C.
Coll, Stone Hilton PLLC, Daniel Z. Epstein, and America First Legal
Foundation on brief for Former National Security Official Joshua
Steinman, amicus curiae.
     Matthew J. Platkin, Attorney General of New Jersey, Viviana
M. Hanley, Deputy Attorney General, Jeremy M. Feigenbaum,
Solicitor General, Shankar Duraiswamy, Deputy Solicitor General,
Andrea Joy Campbell, Attorney General of Massachusetts, Gerard J.
Cedrone, Deputy State Solicitor, Jared B. Cohen, Assistant
Attorney General, Rob Bonta, Attorney General of California,
Denise Levey, Deputy Attorney General, Michael L. Newman, Senior
Assistant Attorney General, Marissa Malouff, Irina Trasovan,
Supervising Deputy Attorneys General, Lorraine López, Delbert
Tran, Annabelle Wilmott, Deputy Attorneys General, Christopher D.
Hu, Deputy Solicitor General, Phil Weiser, Attorney General of
Colorado, Shannon Stevenson, Solicitor General, William M. Tong,
Attorney General of Connecticut, Janelle Rose Medeiros, Assistant
Attorney General, Brian L. Schwalb, Attorney General for the
District of Columbia, Caroline S. Van Zile, Solicitor General,
Jeremey R. Girton, Assistant Attorney General, Kathleen Jennings,
Attorney General of Delaware, Vanessa L. Kassab, Deputy Attorney
General,   Anne   E.   Lopez,   Attorney    General   of   Hawai'i,
Kaliko'onālani D. Fernandes, Solicitor General, Aaron M. Frey,
Attorney General of Maine, Thomas A. Knowlton, Assistant Attorney
General, Dana Nessel, Attorney General of Michigan, Toni L. Harris,
Neil Giovanatti, Stephanie M. Service, Assistant Attorneys
General, Anthony G. Brown, Attorney General of Maryland, Adam D.
Kirschner, Senior Assistant Attorney General, Keith Ellison,
Attorney General of Minnesota, John C. Keller, Chief Deputy
Attorney General, Aaron D. Ford, Attorney General of Nevada, Heidi
Parry Stern, Solicitor General, Letitia James, Attorney General of
New York, Matthew William Grieco, Senior Assistant Solicitor
General, Ester Murdukhayeva, Deputy Solicitor General, Raúl
Torrez, Attorney General of New Mexico, James W. Grayson, Chief
Deputy Attorney General, Jeff Jackson, Attorney General of North
Carolina, Daniel P. Mosteller, Associate Deputy Attorney General,
Peter F. Neronha, Attorney General of Rhode Island, Katherine
Connolly Sadeck, Solicitor General, Joshua L. Kaul, Attorney
General of Wisconsin, Gabe Johnson-Karp, Assistant Attorney
General, Charity R. Clark, Attorney General of Vermont, Julio A.
Thompson, Co-Director, Civil Rights Unit, David Chiu, City
Attorney of San Francisco, and David S. Louk, Deputy City Attorney,
on brief for appellees.



                          March 11, 2025
          BARRON,    Chief   Judge.     Defendants-Appellants   ("the

Government") move for a stay pending appeal of a February 13, 2025

order by the United States District Court for the District of

Massachusetts.1   The District Court's order granted a "universal"

preliminary injunction to eighteen states ("Plaintiff-States"),

including Massachusetts,2 in their suit challenging the enforcement

of Executive Order No. 14,160.

          Titled "Protecting the Meaning and Value of American

Citizenship" ("Executive Order"), Exec. Order No. 14,160, 

 (Jan. 20, 2025), the Executive Order limits, in two

circumstances, the persons whom federal officials may recognize as

having United States citizenship based on having been born in the

United States.      The first circumstance is "when that person's

mother was unlawfully present in the United States and the father

was not a United States citizen or lawful permanent resident at


     1 The following movants have moved for leave to file an amicus
(or amici) curiae brief in support of the Government's motion for
a stay pending appeal: the State of Tennessee; 18 Members of
Congress who serve on the Committee on the Judiciary of the U.S.
House of Representatives; America's Future, Gun Owners of America,
Gun Owners Foundation, Citizens United, U.S. Constitutional Rights
Legal Defense Fund, Leadership Institute, and Conservative Legal
Defense and Education Fund; and Former National Security Official
Joshua Steinman. We grant those motions, and the proposed briefs
are accepted as filed. We have considered the amicus briefs only
insofar as they concern legal issues and positions raised by the
parties. See Ryan v. U.S. Immigr. & Customs Enf't, 

, 33
n.10 (1st Cir. 2020).
     2 The District of Columbia and the City of San Francisco also
are plaintiffs.


                                - 4 -
the time of said person's birth."       

    The second circumstance is

"when that person's mother's presence in the United States at the

time of said person's birth was lawful but temporary . . . and the

father was not a United States citizen or lawful permanent resident

at the time of said person's birth."          

            The complaint alleges that the Executive Order violates

the Citizenship Clause of the Fourteenth Amendment to the United

States Constitution, which provides that "[a]ll persons born or

naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein

they reside."     U.S. Const. amend. XIV, § 1.        The complaint also

alleges that the Executive Order violates 

, which

provides that "a person born in the United States, and subject to

the jurisdiction thereof" "shall be . . . [a] citizen[] of the

United States at birth."       The complaint names as the defendants

the President, the Secretary of State, the Secretary of Homeland

Security,   the    Secretary   of   Health    and   Human   Services,   the

Commissioner      of   the   Social    Security     Administration,     the

corresponding agencies, and the United States of America.

            The Plaintiff-States moved for a preliminary injunction

on January 21, 2025.         The District Court's order granting the

motion enjoined all the officials named as defendants, but not the

President, as well as all others "acting in concert with or on




                                    - 5 -
behalf of any named defendant in this action" from "implementing

and enforcing" the Executive Order.3

          We   do   not   address    the    Government's   appeal   of   the

preliminary injunction itself.        We address only the Government's

stay motion, which asks us to decide whether the District Court's

order granting a preliminary injunction should be stayed while

this court takes up an interlocutory appeal of that injunction.

Based on the arguments that the Government presents in support of

the stay motion, we deny it.4

                                     I.

          A preliminary injunction is an "extraordinary remedy."

Winter v. Nat. Res. Def. Council, Inc., 

 (2008).            To



     3 The District Court reasoned that "directly constraining the
President's actions" was not necessary to provide relief to the
Plaintiff-States, as "[o]ther officers and agencies within the
Executive Branch are responsible for implementing the [Executive
Order], and it is their conduct that the plaintiffs really seek to
restrain."
     4 The District Court also issued a preliminary injunction in
the companion case of Doe et al. v. Trump et al., No. 25-cv-10135,
which involved only private plaintiffs and organizations. That
injunction did not provide relief to "other persons or
organizations that are not parties to [that] lawsuit."         The
Government has appealed that injunction but has not moved for a
stay pending appeal of that injunction. We note too that the Ninth
Circuit recently denied the Government's motion for a partial stay
pending appeal of an order granting a nationwide preliminary
injunction to four states in their challenge to the Executive
Order. See Washington v. Trump, No. 25-807, 

 (9th
Cir. Feb. 19, 2025). The Fourth Circuit did the same in a case
brought by private parties. See Casa, Inc. v. Trump, No. 25-1153,

 (4th Cir. Feb. 28, 2025).


                                    - 6 -
obtain this relief, a plaintiff "must establish" that: (1) it is

"likely to succeed on the merits"; (2) it is "likely to suffer

irreparable harm in the absence of preliminary relief"; (3) "the

balance of equities tips in [its] favor"; and (4) "an injunction

is in the public interest."         Id. at 20.       In addition, a plaintiff

seeking a preliminary injunction "must make a 'clear showing' that

[it] is 'likely' to establish each element of standing."                   Murthy

v. Missouri, 

 (2024) (quoting Winter, 

).   A grant of a preliminary injunction is reviewed for abuse of

discretion.      Ashcroft v. ACLU, 

 (2004) (citation

omitted).

            The District Court determined that the Plaintiff-States

met their burden of showing that they were likely to succeed in

establishing their standing to challenge the Executive Order.                   It

also determined that the Plaintiff-States showed that they were

likely to succeed in establishing that the Executive Order violated

the Citizenship Clause of the Fourteenth Amendment and 

.       The      District    Court      next    determined        that   the

Plaintiff-States showed that they would suffer irreparable harm in

the    absence    of    their     requested    injunction       based     on   the

Plaintiff-States'       declarations       "detailing     the    imminent      and

damaging impacts they anticipate will flow from the [Executive

Order]."      Finally,     the    District    Court     determined      that   the

"[b]alance of [h]arms" and the "[p]ublic [i]nterest" supported the


                                     - 7 -
injunction's issuance because "the [G]overnment has no legitimate

interest   in    pursuing   unconstitutional     agency    action"   and   "an

injunction [would] do no more than maintain a status quo that has

been in place for well over a century."5             With respect to the

"universal" aspect of the preliminary injunction, the District

Court explained that such relief was "necessary because the record

establishes that the harms these plaintiffs face arise not only

from births within their borders, but also when children born

elsewhere return or move to one of the plaintiff jurisdictions."

           The Government filed a notice of appeal of the District

Court's preliminary injunction order on February 19, 2025.            On the

same day, it filed a motion in the District Court to stay the

preliminary injunction pending appeal.             See Fed. R. App. P.

8(a)(1)(A) ("A party must ordinarily move first in the district

court for . . . a stay of the judgment or order of a district court

pending appeal.").

           The     District    Court    denied    the     stay   motion    on

February 26, 2025, explaining that "[t]he standard applicable to

the   defendants'     [stay]    request    requires       consideration    of

essentially the same four equitable factors that governed the

plaintiffs' original motion."          The District Court reasoned that


      5The District Court noted that the parties both agree that 

 and the Citizenship Clause of the Fourteenth
Amendment are "coterminous."    The Government does not seek to
distinguish between them in its stay motion to us.


                                  - 8 -
"[i]f the defendants could not succeed in that context, then they

certainly cannot prevail now" because "[o]n the [stay] motion, the

burden shifts to the defendants to establish entitlement to the

extraordinary relief they seek."        The Government filed this motion

for a stay pending appeal on February 27, 2025.            This court set an

expedited briefing schedule.

                                    II.

            "A stay is an intrusion into the ordinary processes of

administration and judicial review, and accordingly is not a matter

of right."    Nken v. Holder, 

 (2009) (internal

quotation marks omitted).      Thus, the party seeking a stay -- here,

the   Government    --   bears    the     burden   of    proving   that   the

circumstances justify one.        

.        To meet that burden,

the Government must: (1) make a "strong showing that [it] is likely

to succeed on the merits" in its appeal; (2) show that it "will be

irreparably injured absent a stay"; (3) show that "issuance of the

stay will [not] substantially injure the other parties interested

in the proceeding"; and (4) show that the stay would be in "the

public interest."     

.       "The first two factors . . . are

the most critical."      

            In evaluating these factors, we are mindful that "[t]he

ability to grant interim relief is . . . a means of ensuring that

appellate courts can responsibly fulfill their role in the judicial

process."    

.         But we are also aware of the "tight


                                   - 9 -
timeline" for resolving applications for interim relief, which is

"not   always     optimal      for   orderly    judicial       decisionmaking."

Labrador v. Poe, 

, 930 (2024) (Kavanaugh, J.,

concurring in the grant of stay).                That makes it especially

important for us to keep in mind that as the "neutral arbiter of

matters the parties present," we "rely on the parties to frame the

issues for decision," Greenlaw v. United States, 

(2008), given our reluctance to definitively opine on issues for

which we have been deprived of "the benefit of vigorous adversarial

testing," Abernathy v. Wandes, 

 (1st Cir. 2013)

(citing Hill v. Kemp, 

 (10th Cir. 2007)).

            The Government expressly declines to make any developed

argument that it is likely to succeed on appeal in showing that

the Executive Order is either constitutional or compliant with 

.      Nor does the Government contest that, for more

than a century, persons in the two categories that the Executive

Order seeks to prevent from being recognized as United States

citizens have been so recognized. Instead, the Government contends

that   it   can   make   the    requisite     showing    for    a   stay   of   the

preliminary injunction even without developing an argument to us

that the Executive Order is lawful and even though the enforcement

of the Executive Order would dramatically break with the Executive

Branch's    longstanding        legal   position        and    thereby     disrupt

longstanding governmental practices.             See, e.g., Legis. Denying


                                     - 10 -
Citizenship at Birth to Certain Child. Born in the U.S., 

, 340-47 (1995).          The Government's chief contention in

so arguing is that, as to the first Nken factor, it has made a

"strong showing" that the Plaintiff-States likely lack standing

both under Article III of the U.S. Constitution, see U.S. Const.

art. III, § 2, cl. 1 (providing that the "judicial Power shall

extend" to all "Cases" and "Controversies"), and under third-party

standing principles.           As we will explain, we conclude that, at

least given its arguments in its stay motion, the Government has

not made a "strong showing" to undermine the Plaintiff-States'

standing in either respect.             We further conclude that it has not

met its burden as to the other Nken factors.

                                          A.

           In        seeking      the      preliminary       injunction,     the

Plaintiff-States contended, and the District Court agreed, that

they were likely to establish that they had Article III standing

based on a number of distinct kinds of injuries traceable to the

enforcement     of    the   Executive      Order.      The   Plaintiff-States'

contentions in this regard included that they likely could show

that the enforcement of the Executive Order would "directly" cause

the Plaintiff-States the "loss of federal . . . funds" that they

otherwise would receive for administering federal programs that

provide   healthcare,       education     for    special   needs   youth,   child

welfare, and the Social Security Administration's Enumeration at


                                        - 11 -
Birth program ("EAB").6            The Plaintiff-States relied on both

Department of Commerce v. New York, 

 (2019), and Biden

v.   Nebraska,    

   (2023),   as   support   for   this

contention.

           The    asserted    pocketbook      injuries    in   Department   of

Commerce and Biden did take the form of a loss of federal funds to

which the plaintiff-states in those cases would have been entitled

absent the challenged federal governmental action.              See Dep't of

Com., 

; Biden, 143 S. Ct. at 2366.             However, the

Government's stay motion to us, like its opposition to the motion

for the preliminary injunction, makes no reference to either

precedent.       Its stay motion thus does not address how those

precedents bear on the Plaintiff-States' Article III standing

insofar as their injury-in-fact is premised on the loss of the

federal funding itself.

           The Government, in its reply to the Plaintiff-States'

opposition to the stay motion, finally addresses Biden -- but still

not Department of Commerce.         In Biden, one of the plaintiff-states

there claimed a fiscal injury based on the loss of loan servicing


      6The EAB program provides a mechanism -- facilitated by
states, including Plaintiff-States -- for newborns to apply for
Social Security Numbers ("SSNs").          Even though eligible
noncitizens (in addition to U.S. citizens) may apply for SSNs, the
EAB program is only open to U.S. citizens by birth. See Soc. Sec.
Admin., Pub No. 05-10023, Social Security Numbers for Children
(2024), ssa.gov/pubs/EN-05-10023.pdf. States that administer the
EAB program receive a service fee for each SSN issued.


                                     - 12 -
fees that a corporation that it controlled would have received

absent   the    Executive   Branch's   forgiveness    of   certain   federal

student loans.      143 S. Ct. at 2365-66.      The Government contends

that Biden only held that this asserted financial injury was

"concrete" and incurred by the state and so did not address whether

the injury was "too attenuated" to establish standing.           But Biden

held not just that the loss of loan servicing "fees that [the

state-controlled corporation] otherwise would have earned" was a

concrete injury, but also that it "[was] an injury in fact directly

traceable to the [challenged government action]."            143 S. Ct. at

2366 (emphasis added).

           The Government relies principally in its stay motion on

the analysis in a footnote in United States v. Texas, 

, 680 n.3 (2023), concerning the attenuated nature of the injury

there, to contend that the Plaintiff-States likely cannot show a

pocketbook injury for purposes of Article III standing.                 The

plaintiff-states in Texas -- unlike the plaintiffs in Department

of   Commerce     and   Biden   who    successfully    established    their

standing -- did not allege that the challenged federal government

action would result in their being denied federal funds to which

they otherwise would be entitled.          

.      In asserting a

pocketbook injury, the plaintiff-states in Texas instead pointed

to the additional state funds that they alleged that they would

expend in response to the federal government's assertedly unlawful


                                  - 13 -
under-regulation of third parties, which the plaintiff-states

contended would cause more undocumented noncitizens to be within

their states than otherwise would be the case.              

.

Thus, given how different Texas is not only from this case but

also from Biden and Department of Commerce, the portion of the

standing analysis in Texas on which the Government relies provides

no basis for us to conclude that it has made the required "strong

showing" to undermine the Plaintiff-States' Article III standing.7

          The Government does also invoke in its stay motion an

out-of-circuit precedent, Washington v. FDA, 

 (9th

Cir. 2024), for the general proposition that an "indirect" fiscal

injury does not constitute an Article III injury. One of the state

plaintiffs in Washington claimed economic injury in the form of

increased costs to the state's Medicaid system, and the court there

determined that the claimed injury "depend[ed] on an attenuated

chain of healthcare decisions by independent actors." 

;

see also 

 (explaining Idaho's contention that the

FDA's elimination of an in-person dispensing requirement for a

particular   medication   would    lead    to   increased    use   of   that



     7 Texas also emphasized that the challenged under-regulation
in that case involved the "Executive Branch's exercise of
enforcement discretion over whether to arrest or prosecute," and
that "a party 'lacks a judicially cognizable interest in the
prosecution . . . of another.'" 

 (alteration in
original) (quoting Linda R.S. v. Richard D., 

(1973)). No such concern is presented here.


                                  - 14 -
medication, which in turn would lead "more women [to] experience

complications that require follow-up care, some of which [will be]

borne by Idaho through Medicaid expenditures" (second alteration

in original) (internal quotation marks omitted)).                 In other words,

as in Texas, the asserted injury took the form of the additional

state funds that the plaintiff-state claimed that it would spend

as a result of the federal government's lack of regulation of a

third party -- namely, the U.S. Food and Drug Administration's

elimination      of     an    in-person         dispensing    requirement      for    a

medication.    See id. at 1174.           This precedent thus no more assists

the      Government's           position           with      respect      to         the

loss-of-federal-funds-based injury at issue here than Texas does.

           The Government separately contends in its stay motion,

without reference to either Department of Commerce or Biden, that

if the Plaintiff-States' alleged injury from the loss of fees from

the Social Security Administration's EAB program sufficed for

Article III standing, then states would "equally have standing to

challenge any federal action that conceivably lowers the birthrate

within   their     borders."          (Emphasis       added).      But,     although

"qualifying for less federal funding" is "primarily [a] future

injur[y],"    it      can    still   be    an    Article III    injury    when   "the

threatened injury is certainly impending, or there is a substantial

risk that the harm will occur."                 Dep't of Com., 

(emphasis added) (quoting Susan B. Anthony List v. Driehaus, 573


                                          - 15 -
U.S. 149, 158 (2014)).         Yet, the Government does not explain why

the loss of the EAB servicing fees differs from the loss of the

loan servicing fees in Biden, which loss was held to be an

Article III injury.      143 S. Ct. at 2365-66.

             The Government more broadly contends in its stay motion

that because the Plaintiff-States have "voluntarily chosen to

provide     certain   benefits       without    regard   to   the    recipient's

citizenship," "the costs they incur to do so are self-inflicted

costs" that "are not traceable to the Executive Order" and thus

"do not confer standing to sue in federal court."                   In doing so,

the Government appears to contend that the Plaintiff-States have

no claimed injuries that are immune from this "self-inflicted

costs" objection.      But, insofar as this contention is a reprise of

the argument based on Texas and Washington, it fails for the same

reasons as that argument fails.          And, in any event, the Government

has not explained why -- and so has not made a "strong showing"

that   --   it   is   likely    to    succeed    in   establishing     that   the

Plaintiff-States' claimed fiscal injury is the result of their

"voluntary" choice to spend their own funds insofar as that injury

is the loss of federal funds to which they otherwise would be

entitled for administering the federal programs at issue.                  After

all, Biden did not deem the plaintiff-state's loss of the fees for

servicing federal student loans to be the result of such a choice

by the plaintiff and thus not a basis for its Article III standing.


                                      - 16 -
See 143 S. Ct. at 2365-66.   Nor did Department of Commerce so deem

the loss of federal funds there.      

.

          We thus conclude that the Government has failed to make

a "strong showing" that the Plaintiff-States likely lack Article

III standing.8

                                 B.

          The Government separately contends in its stay motion to

us that it can make a "strong showing" that the Plaintiff-States

likely cannot satisfy third-party standing requirements even if

they have Article III standing.       The Government first relies on



     8 In addressing the Plaintiff-States' claim that they likely
had Article III standing, the District Court reasoned that the
Plaintiff-States "very likely . . . have sovereign interests in
which persons are U.S. citizens, as state laws commonly define
civic obligations such as jury service using eligibility criteria
that include U.S. citizenship." The Plaintiff-States also allege
an Article III injury based on the administrative costs associated
with updating their citizenship verification systems. We need not
resolve whether either the Plaintiff-States' sovereign interests
or administrative burdens provide alternative bases for their
Article III standing, because we conclude that the Government has
not made the requisite "strong showing" to undermine the
Plaintiff-States' claimed injury from the loss of federal funds.
We will have time enough to address the questions concerning those
asserted injuries, if necessary, in connection with the appeal of
the preliminary injunction itself. The Government does contend
that if such administrative burdens sufficed for Article III
standing, then states would have standing to challenge "any change
in the federal government's policies . . . [that] would affect
eligibility for federal programs."       The Government does not
contend, however, that the same concern applies insofar as the
Plaintiff-States predicate their Article III standing on the
claimed loss of federal funds -- nor is it evident why, in the
face of Biden and Department of Commerce, that concern would be
well-taken.


                               - 17 -
Warth v. Seldin, 

 (1975), and Kowalski v. Tesmer, 

 (2004), for the proposition that a plaintiff "must assert

his own legal rights and interests," 

, and that a

constitutional claim should be brought by the person "at whom the

constitutional protection is aimed," 

 (quoting Sec'y

of State of Md. v. Joseph H. Munson Co., 

, 955 n.5

(1984)).     It thus contends that the Plaintiff-States may not rely

on either the Citizenship Clause of the Fourteenth Amendment or 

 to challenge the Executive Order, as individuals

rather than states hold the right of birthright citizenship that

those provisions guarantee.

            In the proceedings in the District Court, however, the

Government did not mention, cite to, or otherwise address the

portion of Kowalski that recognized that "[i]n several cases, [the

Supreme Court] has allowed standing to litigate the rights of third

parties when enforcement of the challenged restriction against the

litigant would result indirectly in the violation of third parties'

rights."     

 (quoting Warth, 

).             And

the Government did not do so even though the Supreme Court has

explained     after   Kowalski   that     it   has   "generally    permitted

plaintiffs    to   assert   third-party    rights    in   cases"   where   the

above-mentioned condition in Kowalski is met.              June Med. Servs.

L.L.C. v. Russo, 

, 318 (2020) (citing Kowalski, 

).      Nor does the Government's stay motion address this


                                  - 18 -
possible    ground    for     the    Plaintiff-States'          securing   so-called

third-party standing.           Instead, the motion merely once again

asserts    that    "[t]he     [Plaintiff-States]         need    to   allege   fiscal

injuries because the Executive Order violates their own rights,

not just fiscal injuries resulting from an order which, they

allege, unlawfully violates someone else's rights."

            For the first time in its reply to the Plaintiff-States'

opposition to the stay motion, the Government addresses this aspect

of Kowalski.        It does so by asserting that what it terms this

"exception" to the general rule applies only to "parties facing

sanctions, criminal convictions, or civil penalties," and cites

Craig v. Boren, 

 (1976), for this proposition.

Even if we were to excuse the belated nature of the contention,

see Sparkle Hill, Inc. v. Interstate Mat Corp., 

(1st Cir. 2015) ("Our precedent is clear: we do not consider

arguments for reversing a decision of a district court when the

argument is not raised in a party's opening brief."); June Medical,

591 U.S. at 316-18 (arguments challenging third-party standing may

be waived), Craig does not so hold, and the Government does not

point to any case that does.                In fact, Craig observed that the

litigant    faced the possibility of "incurring a direct economic

injury through the constriction of . . . [the] market," and that

"such     injuries     establish          the      threshold     requirements    of"

Article III       standing.         

.     Furthermore,    the


                                          - 19 -
Government ignores the fact that June Medical, 591 U.S. at 318-19,

in recognizing this ground for asserting third-party rights, cited

to Barrows v. Jackson, 

 (1953), in which the Supreme

Court allowed a litigant facing a "direct, pocketbook injury" in

the form of a civil suit seeking damages for the litigant's alleged

breach of a racially restrictive covenant to assert a third party's

equal protection rights as a defense against that suit, 

.        Thus, the Government still fails to explain why

limitations on third-party standing bar the Plaintiff-States from

relying on the Citizenship Clause and 

 to challenge

the Executive Order based on the logic that "enforcement of the

challenged restriction against [them] would result indirectly in

the violation of [the] rights [of those individuals excluded from

citizenship by the Executive Order]."              June Med. Servs., 591 U.S.

at 318 (quoting Kowalski, 

).

           Indeed,        under    the    Executive   Order,    to     achieve    the

"[p]urpose" of ensuring that "the privilege of United States

citizenship does not automatically extend to persons born in the

United   States"     in    certain       circumstances     described    above,    "no

department     or     agency       of      the    United     States     government

shall . . . accept documents issued by State, local, or other

governments or authorities purporting to recognize United States

citizenship" for such persons.                

.            Thus, in

directly   operating       as     to   the   Plaintiff-States,        and   not   the


                                         - 20 -
individuals excluded from citizenship, the Executive Order causes

the Plaintiff-States to lose federal funds but nonetheless has the

indirect   effect     of   preventing   the   individuals    from   obtaining

federally funded services based on their U.S. citizenship.                  As a

result, the Government in seeking the stay from us, as in its

filings in the District Court, simply does not engage with whether

the enforcement of the challenged governmental action against the

Plaintiff-States would result "indirectly" in the violation of the

individuals' rights under the Citizenship Clause and 8 U.S.C

§ 1401.    June Med. Servs., 591 U.S. at 318 (quoting Kowalski, 

).

              The   Government   also    cites   to    South     Carolina     v.

Katzenbach, 

 (1966), Haaland v. Brackeen, 

(2023), and Murthy, 

, for the proposition that states

may not "assert[] derivative injuries from the alleged violations

of other individuals' rights."           But Katzenbach held only that

states could not bring parens patriae actions against the federal

government, see 

, which is not a theory of

standing on which the Plaintiff-States rely.           And while it is true

that Brackeen, 

 n.11, and Murthy, 

,

denied the plaintiff-states' assertions of third-party standing in

those cases as "thinly veiled attempt[s] to circumvent the limits

on   parens    patriae     standing,"   the   Court   did   so   because     the

plaintiff-states there did not successfully allege a concrete


                                   - 21 -
Article III injury -- which, for reasons explained above, the

Government has failed to make a "strong showing" is likely the

case here.   Furthermore, in those cases, there was no sense in

which enforcement of the challenged governmental action against

the plaintiff-states "indirectly" resulted in the violation of the

constitutional rights held by individuals.   June Med. Servs., 591

U.S. at 318 (citing Kowalski, 

).

          Thus, we do not see how the Government has made, through

its arguments to us, a "strong showing" that it is likely to

prevail in its contention that the Plaintiff-States do not have

standing to assert the federal constitutional and statutory rights

to United States citizenship of the individuals who would not be

recognized as having such citizenship under the Executive Order.9

                               C.

          The Government's failure to make a "strong showing" to

undermine the Plaintiff-States' standing -- and thus as to the

first Nken factor -- adversely impacts the arguments that it makes

about what it describes as the "remaining" Nken factors.    As to

the second and fourth Nken factors -- whether the Government "will



     9 We note that the Government does not make any independent
argument that the Plaintiff-States either fall outside the "zone
of interest" of, or fail to invoke a valid cause of action with
respect to, the rights asserted under 

 and the
Citizenship Clause of the Fourteenth Amendment.       Cf. INS v.
Legalization Assistance Project of the L.A. Cnty. Fed'n of Labor,

 (1993) (O' Connor, J., in chambers).


                             - 22 -
be irreparably injured absent a stay" and whether the stay would

be in "the public interest" -- the Government contends that they

"merge" when the Government is the party seeking a stay of a

preliminary injunction against it.           Nken, 

.         The

Government     contends   that   is   so   because   any   injunction      that

"prevents the President from carrying out his broad authority over

and responsibility for immigration matters" results in irreparable

harm to it and thus the public interest.             But the precedent to

which   the    Government   cites     in   support   of   its   argument   for

satisfying its burden as to these two factors found such an

injunction to be "an improper intrusion by a federal court into

the workings of a coordinate branch of the Government" only because

the Government had shown that the plaintiffs likely "had no

standing to seek the order entered by the District Court."            INS v.

Legalization Assistance Project of the L.A. Cnty. Fed'n of Labor,

 (1993) (O' Connor, J., in chambers).             As we

have just explained, the Government has not made a "strong showing"

that the Plaintiff-States are likely to fail in establishing their

standing.     In addition, as we noted at the outset, the Government

has not made any developed argument in support of its stay motion

that it is likely to succeed in showing that the Executive Order

is lawful.

              The Government relatedly argues that the injunction is

"especially harmful" because "the challenged Executive Order is an


                                    - 23 -
integral part of President Trump's broader effort to repair the

United States' immigration system and to address the ongoing crisis

at the southern border."   Because the Government has not made a

"strong showing" that it is likely to succeed in showing either

that the lower court had no power to enter an injunction or that

the enjoined conduct was lawful, we do not see how this contention

can suffice to show that the Government has met its burden as to

the irreparable harm and public interest factors any more than the

contention just considered could do so.

          We note, too,    to the extent that    we must consider

"irreparable injury to the parties or to the public resulting from

the premature enforcement of a determination which may later be

found to have been wrong"     in assessing the public interest,

Scripps-Howard Radio v. FCC, 

 (1942) (emphasis added),

we must consider how the interests of the broader public are

affected by "premature enforcement" of the determination in the

Executive Order regarding who is entitled to be recognized as a

U.S. citizen.   The risks that this determination may later be

deemed wrong are high, given that the Government does not argue to

us that the Executive Order likely complies with either federal

constitutional or federal statutory law.   And, understandably, the

Government does not dispute that the public has a substantial

interest in ensuring that those entitled to be recognized as U.S.

citizens under the criteria on which officials at all levels of


                              - 24 -
government have long relied are not unlawfully deprived of that

recognition.          So, as to the first two Nken factors -- which are

the    most   critical        ones    --    and    the   fourth   Nken      factor,    the

Government has not met its burden.

              With respect to the third Nken factor -- whether the

"issuance of the stay will substantially injure the other parties

interested in the proceeding" -- the Government also bears the

burden as the party seeking the stay.                       See Nken, 

.         To     meet     it,     the    Government       contends       that    the

Plaintiff-States         "have       failed   to    show   that any     such    injuries

occurring between now and final judgment would be irreparable."

That is so, the Government contends, because the Plaintiff-States

have failed to demonstrate that any loss of federal funds "could

not be recovered through submission of claims after final judgment

or    through    the    administrative         procedures       applicable     to     those

programs"       and     "requiring         exhaustion      of   claims      through     an

administrative process that could result in payment of contested

claims [does not] constitute irreparable harm."

              In its motion for a stay to the District Court, however,

the Government did not make this contention, which, we note, also

does not address the significant additional burdens that the

District Court identified in finding that the Plaintiff-States

would    suffer       irreparable      harm    in   the    absence     of   preliminary

injunctive      relief     to    redress      their      Article III     injury.       Cf.


                                           - 25 -
Acevedo-García v. Vera-Monroig, 

 (1st Cir. 2002)

(declining to consider arguments raised for first time in this

court in support of stay pending appeal of preliminary injunction).

This waiver aside, we note that the Plaintiff-States asserted

during the preliminary injunction proceedings below that, even

after final judgment in this litigation, they would not be able to

recoup the lost EAB servicing fees if families do not obtain an

SSN at birth through the EAB program, cf. Biden, 143 S. Ct. at

2366, and the Government does not contend otherwise.            Furthermore,

with respect to other federal funds that the Plaintiff-States

assert enforcement of the Executive Order would cause them to lose,

the Government does not, in attempting to meet its burden as to

the third Nken factor, explain how the Plaintiff-States could

recoup those funds after final judgment.          Nor does the Government

address the Plaintiff-States' assertion that any administrative

proceedings applicable to the recoupment of these funds would be

unable to adjudicate constitutional challenges to the eligibility

criteria for those funds.

            While the Government separately contends with respect to

the   third     Nken   factor    that    the     alleged   harms    to   the

Plaintiff-States will occur "years in the future," it does so for

the first time in its reply to the Plaintiff-States' opposition to

the motion for the stay.          See Sparkle Hill, 

.

Moreover,     the   Government   does   not    grapple   with   declarations


                                  - 26 -
submitted by the Plaintiff-States in the preliminary injunction

proceedings that show that the loss of federal funds for healthcare

insurance and the loss of fees from the EAB program would occur

immediately upon the birth of any newborns who would not be

recognized as U.S. citizens if the Executive Order were enforced.

Thus, the Government has not shown that it has met its burden with

respect to the third Nken factor, insofar as it seeks to meet that

burden by challenging the District Court's determination that the

Plaintiff-States     had   established    that     they   would   suffer

irreparable harm in the absence of their requested relief.           We

therefore conclude that the Government has failed to meet its

burden as to the third Nken factor, just as it has failed to meet

its burden with respect to the other Nken factors.

                                 III.

           The Government separately contends that, under the Nken

factors, it is at least entitled to a stay pending appeal of the

preliminary injunction as to its nationwide application.             In

opposing   the     Plaintiff-States'     request    for   a   nationwide

preliminary injunction, however, the Government made only the

broad argument -- not now asserted -- that the District Court

lacked the authority to enjoin the Government's conduct toward any

nonparties because district courts necessarily lack the power to

enjoin nonparties.    Then, in seeking a stay as to the nationwide

aspect of the injunction in front of the District Court, the


                                - 27 -
Government did not repeat that categorical contention.             It instead

argued that a court abuses its discretion when it issues an

injunction that is not necessary to provide "complete relief to

the plaintiff[s]," and that it is likely to succeed in showing

that   this     injunction   was     not    so    necessary     because   the

Plaintiff-States'     claimed      injuries      could    be   "substantially

remedied by an order that provided relief only within their

borders."     Now, in its application to our court for a stay pending

appeal, the Government contends that the preliminary injunction is

overbroad because "complete relief" could have been provided by a

preliminary injunction that "required the federal defendants to

treat the children covered by the Executive Order as eligible for

the services the [Plaintiff-States] administer."

            The Plaintiff-States argue that the Government did not

apprise the District Court of the alternative injunction that it

now identifies in its stay motion to us, and, in doing so, they

point out that the Government offers no details on "how such an

injunction would be designed or enforced."               They thus argue that

the Government cannot assert the availability of such an injunction

now as a reason for granting, in part, the stay motion.

            The Government responds that it has consistently lodged

the same challenge to the nationwide scope of the injunction

throughout the course of this litigation.           We cannot agree.




                                   - 28 -
            The argument that the Government now presses in its stay

motion is obviously not the far more sweeping one advanced in

challenging the granting of a nationwide preliminary injunction in

the preliminary injunction proceedings themselves.         In requesting

a stay in front of the District Court, moreover, the Government

contested    the    District   Court's    finding   that   a   nationwide

preliminary injunction was necessary to provide complete relief to

the Plaintiff-States only on the ground that "the remote concern

that babies will be born after the effective date of the [Executive

Order] but also move into the plaintiff states while this case is

pending is too speculative to justify such sweeping relief."           In

context,    then,    its   contention     at   that    time    that   the

Plaintiff-States' claimed injuries would be substantially remedied

by an order that provided relief "only within their borders" was

a contention that the Executive Order not be enforced against the

Plaintiff-States as to children born inside their borders but still

be enforced against them as to children born outside.            That is

different from the contention that it now makes in opposing the

nationwide aspect of the injunction, which focuses on which state

administers the service -- rather than where the children are born.

Thus, we decline to address the contention.           See Philip Morris,

Inc. v. Harshbarger, 

 (1st Cir. 1998) (explaining

that "[a]s a general rule, a disappointed litigant cannot surface

an objection to a preliminary injunction for the first time in an


                                 - 29 -
appellate venue" because doing so deprives the district court of

the opportunity to "consider [the objection] and correct the

injunction if necessary, without the need for appeal" (internal

quotation marks omitted) (quoting United States v. Zenon, 

   (1st   Cir.    1983)));    Acevedo-García,     

(declining to consider arguments raised for first time in this

court in support of stay pending appeal of preliminary injunction).

             We do note, however, that, waiver aside, the Government

cites no authority for the proposition that the first Nken factor

weighs in favor of a stay of a preliminary injunction as to its

nationwide scope even when the party seeking such a stay makes no

"strong showing" that it is likely to succeed in demonstrating

either that the challenged conduct is lawful or that the plaintiff

lacks standing to bring the challenge.               Cf. Biden, 143 S. Ct. at

2376 (denying "as moot" the Government's application to vacate, or

at a minimum narrow, the lower court's nationwide injunction

pending      appeal,   in     light     of     its    conclusion    that       the

plaintiff-states there had standing to challenge the Government

action, see id. at 2365-68, and that the challenged action was

unlawful, see id. at 2365-75).            And yet, the Government, as we

have explained, has not made a strong showing as to either the

Executive Order's lawfulness or the Plaintiff-States' lack of

standing. Accordingly, the Government has failed to make a "strong

showing" that the first Nken factor favors the grant of a stay


                                      - 30 -
pending appeal of the preliminary injunction as to its nationwide

application.

             The only other Nken factor that the Government addresses

in seeking a stay as to the injunction's scope is whether such a

stay would be in the public interest.                In that regard, it asserts

that   the   public-interest         factor    weighs      against    a    nationwide

preliminary injunction because "nineteen other States filed amicus

briefs opposing a preliminary injunction here."                 According to the

Government, the District Court's order "imposes an injunction on

those non-party States to which they object."

             There is no preliminary injunction, however, against any

non-party States, only a preliminary injunction that bars the

Government from enforcing the Executive Order against those states

(and   every    other      state).    Nor     does   the    Government      cite   any

authority      for   the    proposition     that     a   nationwide       preliminary

injunction is against the public interest whenever nineteen states

oppose the entry of the injunction against federal officials -- and

so even as to the specific circumstance that we confront here,

which involves a proposed change to the long-established means by

which the United States has determined who its citizens are. Nken,

 (explaining that because a stay is "an exercise of

judicial discretion," "the propriety of its issue is dependent

upon the circumstances of the particular case" (quoting Virginian

Ry. Co. v. United States, 

 (1926))).                        Thus,


                                      - 31 -
the Government has not met its burden under the Nken factors for

a stay as to the nationwide scope of the preliminary injunction.

                                     IV.

          There is one hanging thread.           In challenging the scope

of the District Court's preliminary injunction, the Government

separately argues that it is overbroad to the extent that it

"prevents . . . the Executive Branch as a whole from beginning the

process   of   formulating   relevant        policies   and   guidance     for

implementing the President's Order" because the Plaintiff-States

cannot claim any injury from such "internal operations."              But, as

the District Court noted, the Government does not identify any

such steps that it wishes to take but is enjoined from taking by

the District Court's order.     Nor do we read the plain terms of the

District Court's order to enjoin "internal operations" that are

"preparatory   operations    that    cannot    impose   any   harm"   on   the

Plaintiff-States.

                                      V.

          For the reasons given above, the motion for a stay

pending appeal is denied.     A briefing order shall issue forthwith.




                                    - 32 -