State of New Jersey v. Trump
U.S. Court of Appeals for the First Circuit
State of New Jersey v. Trump
Opinion
United States Court of Appeals
For the First Circuit
No. 25-1169
O. DOE; BRAZILIAN WORKER CENTER; LA COLABORATIVA,
Plaintiffs, Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the
United States; US DEPARTMENT OF STATE; MARCO RUBIO, in his
official capacity as Secretary of State; US SOCIAL SECURITY
ADMINISTRATION; FRANK J. BISIGNANO, in his official capacity as
Commissioner of Social Security,
Defendants, Appellants.
__________________
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 HAWAII; STATE OF MAINE;
STATE OF MARYLAND; DANA NESSEL, Attorney General for the People
of the State 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, CA,
Plaintiffs, Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the
United States; US DEPARTMENT OF STATE; MARCO RUBIO, in his
official capacity as Secretary of State; US DEPARTMENT OF
HOMELAND SECURITY; KRISTI NOEM, in her official capacity as
Secretary of Homeland Security; US DEPARTMENT OF HEALTH AND
HUMAN SERVICES; ROBERT F. KENNEDY, JR., in his official capacity
as Secretary of Health and Human Services; US SOCIAL SECURITY
ADMINISTRATION; FRANK J. BISIGNANO, in his official capacity as
Commissioner of Social Security; UNITED STATES,
Defendants, Appellants.
APPEALS 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.
Eric D. McArthur, Deputy Assistant Attorney General, with
whom Yaakov M. Roth, Acting Assistant Attorney General, Mark R.
Freeman, Sharon Swingle, Brad Hinshelwood, and Derek Weiss,
Attorneys, U.S. Department of Justice, were on brief for
appellants.
William J. Olson, Jeremiah L. Morgan, William J. Olson, P.C.,
Jeffrey C. Tuomala, Michael Boos, and Citizens United, on brief
for America's Future, Gun Owners of America, Inc., Gun Owners
Foundation, Citizen United, U.S. Constitutional Rights Legal
Defense Fund, Leadership Institute, and Conservative Legal Defense
and Education Fund as amici curiae supporting appellants.
Judd E. Stone II, Christopher D. Holton, Ari Cuenin, Stone
Hilton PLLC, Daniel Z. Epstein, and America First Legal Foundation,
on brief for Former National Security Official Joshua Steinman as
amicus curiae supporting appellants.
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 as amici curiae supporting appellants.
Jonathan Skrmetti, Attorney General & Reporter, and J.
Matthew Rice, Solicitor General, on brief for the State of
Tennessee as amicus curiae supporting appellants.
Matt A. Crapo, Christopher J. Hajec, Gabriel R. Canaan, and
Immigration Reform Law Institute, on brief for Immigration Reform
Law Institute as amicus curiae supporting appellants.
Shankar Duraiswamy, Deputy Solicitor General, with whom
Matthew J. Platkin, Attorney General of New Jersey, Viviana M.
Hanley, Elizabeth R. Walsh, Shefali Saxena, Deputy Attorneys
General, Jeremy M. Feigenbaum, 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,
Lorraine López, Delbert Tran, Annabelle Wilmott, Deputy Attorneys
General, Michael L. Newman, Senior Assistant Attorney General,
Marissa Malouff, Irina Trasovan, Supervising 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, Ian R. Liston, Director of
Impact Litigation, 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, Julia Doyle,
Solicitor 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, Jonathan T. Rose, Solicitor General,
David Chiu, City Attorney of San Francisco, and David S. Louk,
Deputy City Attorney, were on brief for appellees.
Oren Sellstrom, with whom Ivan E. Espinoza-Madrigal, Jacob M.
Love, Mirian Albert, and Lawyers for Civil Rights, were on brief
for appellees.
Vincent Levy and Hannah Bartlett, on brief for Professor
Rothman as amicus curiae supporting appellees.
Lori Chen, Owen R. Wolfe, Wendy M. Feng, Seyfarth Shaw LLP,
Rahat N. Babar, Edgar Chen, Chris M. Kwok, and National Asian
Pacific American Bar Association, on brief for National Asian
Pacific American Bar Association, et al. as amici curiae supporting
appellees.
Douglas E. Lieb and Kaufman Lieb Lebowitz & Frick LLP, on
brief for Immigration Law Scholars Kristin Collins, Gerald Neuman,
and Rachel Rosenbloom as amici curiae supporting appellees.
Elizabeth B. Wydra, Brianne J. Gorod, Smita Ghosh, Anna K.
Jessurun, and Constitutional Accountability Center, on brief for
Scholars of Constitutional Law and Immigration as amici curiae
supporting appellees.
Anna M. Baldwin, Campaign Legal Center, Angelo Ancheta, and
Dēmos, on brief for Secure Families Initiative as amicus curiae
supporting appellees.
Jonathan D. Hacker, Arjun A. Shenoy, Anthony S. Wang,
O'Melveny & Myers LLP, Jessica Levin, Melissa R. Lee, Center for
Civil Rights and Critical Justice, Robert S. Chang, Susan McMahon,
Fred T. Korematsu Center for Law and Equality, Bethany Li, Niji
Jain, Razeen Zaman, and Asian American Legal Defense and Education
Fund, on brief for Fred T. Korematsu Center for Law and Equality,
Asian American Legal Defense and Education Fund, Center for Civil
Rights and Critical Justice, and 84 Additional Nonprofit and
Grassroots Organizations and Race and Law Centers as amici curiae
supporting appellees.
Reena Parikh, John Cort, Kira Hinchey, Shaquan McDowell,
Carolyn Zaccaro, Boston College Legal Services LAB, Juan Camilo
Mendez, Sarai Suarez Campos, and HarborCOV, on brief for Non-Profit
Organizations Serving Immigrant Survivors of Domestic Violence and
Sexual Assault as amici curiae supporting appellees.
James J. Pastore, Stephanie D. Thomas, Natalie Tsangu,
Chester S. Dubov, Debevoise & Plimpton LLP, Edward G. Caspar,
Olivia N. Sedwick, and Lawyers' Committee for Civil Rights Under
Law, on brief for National Association for the Advancement of
Colored People, the League of Women Voters, and the Equal Justice
Society as amici curiae supporting appellees.
Richard B. Kendall, Kendall Brill & Kelly LLP, on brief for
Historians Martha S. Jones and Kate Masur as amici curiae
supporting appellees.
Jonathan Weinberg, Linus Chan, Douglas Jensen, Michael Bass,
and Sher Tremonte LLP, on brief for American Immigration Lawyers
Association as amicus curiae supporting appellees.
Dena Kia, Ishika Desai, Neel Chatterjee, Andrew Ong, and
Goodwin Procter LLP, on brief for Professors Eika Lee, Paul
Finkelman, and Gabriel J. Chin as amici curiae supporting
appellees.
Matthew Holder, Communications Workers of America, Alice
O'Brien, National Education Association, Mario Martinez, United
Farm Workers of America, Lisa Pedersen, United Food and Commercial
Workers International Union, Steven K. Ury, Elena Medina, Deborah
L. Smith, Mac McMechan, Service Employees International Union,
Daniel McNeil, American Federation of Teachers, Teague Paterson,
and American Federation of State, County, & Municipal Employees,
AFL-CIO, on brief for Service Employees International Union,
American Federation of Teachers, American Federation of State,
County and Municipal Employees, Communications Workers of America,
National Education Association, United Farm Workers of America,
and United Food and Commercial Workers International Union, as
amici curiae supporting appellees.
October 3, 2025
BARRON, Chief Judge. In the wake of the Civil War, our
nation, in 1868, ratified the Fourteenth Amendment to the U.S.
Constitution. The amendment provides, in its first clause, 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. Nearly a century later, after a thorough review
of our nationality laws, Congress passed § 301(a)(1) of the
Immigration and Nationality Act, codified as 8 U.S.C. § 1401(a). That measure similarly provides that "a person born in the United States, and subject to the jurisdiction thereof" "shall be [a] national[] and citizen[] of the United States."Pub. L. No. 82-414, § 301
(a)(1),66 Stat. 235
, 235 (1952).
Relying on these longstanding guarantees of birthright
citizenship, a Massachusetts federal district court, in a pair of
consolidated cases, preliminarily enjoined the enforcement and
implementation of Executive Order No. 14160, 90 Fed. Reg. 8449
(Jan. 20, 2025), "Protecting the Meaning and Value of American
Citizenship" (the EO). The EO's "purpose" is to deny birthright
citizenship to children born after the EO's effective date if, at
the time of their birth, their fathers are not United States
citizens or lawful permanent residents (LPR) and their mothers are
in this country either (1) unlawfully or (2) temporarily.
- 6 -
Id. § 1. The EO "[e]nforce[s]" this "[p]urpose" through
directives to various federal agency heads. Id. § 3.
The Government1 now asks us to reverse the preliminary
injunctions in these cases. We see no reason to do so. The
Government is right that the Framers of the Citizenship Clause
sought to remove the stain of Dred Scott v. Sandford, 60 U.S. (19
How.) 393(1857), which shamefully denied United States citizenship to "descendants of Africans who were imported into this country, and sold as slaves," even when the descendants were born here. Id. at 403. But the Framers chose to accomplish that just purpose in broad terms, as both the Supreme Court in United States v. Wong Kim Ark,169 U.S. 649
(1898), and Congress in
passing § 1401(a) have recognized. The Government is therefore
wrong to argue that the plaintiffs are not likely to succeed in
showing that the children that the EO covers are citizens of this
country at birth, just as the Government is wrong to argue that
various limits on our remedial power independently require us to
reverse the preliminary injunctions.2
1 For ease of exposition, we refer to the governmental
defendants throughout as "the Government."
2 We nonetheless conclude that, given the nature of the
underlying claims, the preliminary injunctions may apply only to
agency officials, rather than the agencies themselves. See
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015)
("What our cases demonstrate is that, 'in a proper case, relief
may be given in a court of equity . . . to prevent an injurious
act by a public officer.'" (alteration in original) (emphasis
- 7 -
The analysis that follows is necessarily lengthy, as we
must address the parties' numerous arguments in each of the cases
involved. But the length of our analysis should not be mistaken
for a sign that the fundamental question that these cases raise
about the scope of birthright citizenship is a difficult one. It
is not, which may explain why it has been more than a century since
a branch of our government has made as concerted an effort as the
Executive Branch now makes to deny Americans their birthright.
I. Procedural History
On January 20, 2025, O. Doe (a pseudonym) and two
immigrant-focused nonprofit organizations -- Brazilian Worker
Center and La Colaborativa -- filed suit in the United States
District Court for the District of Massachusetts to challenge the
EO. These plaintiffs -- collectively the Doe-Plaintiffs -- named
as defendants the President, the U.S. Department of State (DOS),
Marco Rubio in his capacity as Secretary of DOS, the U.S. Social
Security Administration (SSA), and Michelle King in her capacity
as Acting Commissioner of SSA.
added) (quoting Carroll v. Safford, 44 U.S. (3 How.) 441, 463(1845))); cf. FDIC v. Meyer,510 U.S. 471, 475
(1994) ("Absent a
waiver, sovereign immunity shields the Federal Government and its
agencies from suit." (citing Loeffler v. Frank, 486 U.S. 549, 554
(1988))). The preliminary injunctions are therefore vacated in
that one limited respect.
- 8 -
The complaint alleges that the EO violates (1) the
Citizenship Clause of the Fourteenth Amendment and (2) the equal
protection component of the Fifth Amendment. It also alleges that
the EO violates (1) § 1401(a) and (2) the Administrative Procedure
Act (APA), 5 U.S.C. § 706. For relief, the complaint seeks a
declaratory judgment that the EO is unlawful in these respects and
a preliminary and permanent injunction barring the defendants from
enforcing or "carrying out [the EO's] directive[s]."
A day later, on January 21, 2025, a group of states and
others -- collectively, the State-Plaintiffs -- filed a suit of
their own in the same District Court to challenge the EO. They
named as defendants the President, Marco Rubio in his capacity as
Secretary of DOS, Benjamine Huffman in his capacity as Acting
Secretary of the U.S. Department of Homeland Security (DHS),
Dorothy Fink in her capacity as Acting Secretary of the U.S.
Department of Health and Human Services (HHS), and Michelle King
in her capacity as Acting Commissioner of SSA. The
State-Plaintiffs also sued DOS, DHS, HHS, SSA, and the "United
States of America."
The State-Plaintiffs' complaint alleges that the EO
violates the (1) Citizenship Clause of the Fourteenth Amendment
and (2) Separation of Powers doctrine. It also alleges that the
EO violates (1) § 1401(a) and (2) the APA. The complaint seeks a
declaratory judgment that the EO is unlawful in these respects and
- 9 -
that "actions taken by Defendant agencies to implement or enforce
the [EO] violate the [APA]." It also seeks a preliminary and
permanent injunction barring the Government from enforcing or
implementing the EO. Finally, the complaint requests that the
District Court "[v]acate any actions taken by Defendant agencies
to implement or enforce the [EO]."
The District Court granted both sets of plaintiffs'
motions for preliminary injunctions on February 13, 2025. It did
so after concluding that the plaintiffs in both cases were
"exceedingly likely" to succeed on their Citizenship Clause and
§ 1401(a) claims.
In the Doe-Plaintiffs' case, the preliminary injunction
bars the federal agencies and officials that the plaintiffs named
as defendants, but not the President, as well as all "other persons
acting in concert with or [on] behalf of any named defendant in
this action" from "implementing and enforcing" the EO "against
plaintiff O. Doe, or against any member of La Colaborativa or the
Brazilian Worker Center." In the State-Plaintiffs' case, the
District Court determined that it was necessary to issue a
"universal" preliminary injunction to provide "complete relief" to
the State-Plaintiffs. That was so, the District Court determined,
because some of the harms identified by the
State-Plaintiffs -- including the administrative burdens that
would flow from barring enforcement of the EO only in the
- 10 -
Plaintiff-States, given that people move across state
lines -- would likely arise unless the EO was barred from being
enforced nationwide. This order enjoins substantially the same
defendants as the other order.
On February 19, 2025, the Government filed a notice of
appeal as to each of the preliminary injunctions. That same day,
the Government also filed in the State-Plaintiffs' case a motion
in the District Court to stay the preliminary injunction pending
resolution of the appeal. The District Court denied the motion on
February 26, 2025.
The following day, the Government filed a stay motion in
the State-Plaintiffs' case in this Court. See New Jersey v. Trump,
131 F.4th 27(1st Cir. 2025). The motion argued that the State-Plaintiffs lacked standing under Article III of the U.S. Constitution, seeid. at 35-37
, and third-party standing to assert the citizenship rights of others, seeid. at 35, 38
. The motion also argued that a universal injunction was not necessary to provide complete relief to the State-Plaintiffs. Seeid. at 42-43
.
We denied the stay. See id. at 33. The Government then moved in the Supreme Court for a partial stay pending appeal of the preliminary injunction in the State-Plaintiffs' case, as well as in two out-of-circuit cases in which district courts had issued similar preliminary injunctions. See Trump v. CASA, Inc.,606 U.S. 831, 837-38
(2025).
- 11 -
The Government argued that some of the plaintiffs in
this group of cases -- including the State-Plaintiffs
here -- lacked Article III and third-party standing. See id.at 838 n.2. It also argued that each of the district courts -- and thus the District Court here -- erred in issuing a "universal injunction."Id. at 841
.
On June 27, 2025, the Supreme Court held that universal
injunctions, insofar as they provide relief to non-parties,
"likely exceed the equitable authority that Congress has granted
to federal courts." Id. at 837. The Supreme Court explained, however, that "the equitable tradition has long embraced the rule that courts generally 'may administer complete relief between the parties.'"Id.
at 851 (quoting Kinney-Coastal Oil Co. v. Kieffer,277 U.S. 488, 507
(1928)). It further explained that "the
complete-relief inquiry is more complicated" in the
State-Plaintiffs' case "because the relevant injunction does not
purport to directly benefit nonparties." Id. at 853. Indeed, the
Supreme Court noted that in the State-Plaintiffs' case, the
District Court had specifically "decided that a universal
injunction was necessary to provide the States themselves with
complete relief." Id.
After summarizing the competing arguments about whether
a universal injunction was necessary to provide "complete relief"
to the State-Plaintiffs and noting two alternative and narrower
- 12 -
preliminary injunctions that the Government proposed, the Supreme
Court declined to take up the "arguments in the first instance."
Id. at 854. The Court "le[ft] it to" the "lower courts" to
"determine whether a narrower injunction is appropriate." Id.
Ultimately, the Court granted the "Government's applications to
partially stay the preliminary injunctions . . ., but only to the
extent that the injunctions are broader than necessary to provide
complete relief to each plaintiff with standing to sue." Id. at
861.
Thereafter, in the State-Plaintiffs' case, the
Government moved in our Court to be permitted to provide
supplemental briefing as to CASA's effect on the pending appeal.
Doe v. Trump, 142 F.4th 109(1st Cir. 2025). We denied the motion. But, while retaining jurisdiction over the appeal, we "remanded to the District Court for the limited purposes" of "enabling the District Court to consider the bearing, if any, of [the Supreme Court's] guidance in CASA on the scope of the preliminary injunction," "to address any arguments that the parties may advance with respect to what grounds may now be asserted regarding the injunction's scope," and "to act accordingly."Id. at 112
.
On July 25, 2025, the District Court determined that "no
workable, narrower alternative to the injunction issued originally
would provide complete relief to the" State-Plaintiffs. The
- 13 -
District Court therefore "decline[d] to modify [its preliminary]
injunction."
On August 1, 2025, we heard oral argument in the appeal
of the preliminary injunctions in the Doe-Plaintiffs' and
State-Plaintiffs' cases. We also heard oral argument, at that
time, in the appeal of a similar preliminary injunction that had
been issued by the United States District Court for the District
of New Hampshire on February 11, 2025, in favor of three other
immigrant-focused nonprofit organizations. See N.H. Indon. Cmty.
Support v. Trump, 765 F. Supp. 3d 102 (D.N.H. 2025). That appeal
was heard with the appeals in the Doe-Plaintiffs' and
State-Plaintiffs' cases.3 We resolve the appeal in that case in a
separate opinion that we also issue today. See N.H. Indon. Cmty.
Support v. Trump, No. 25-1346 (1st Cir. Oct. 3, 2025).
II. Standard of Review
To be granted a preliminary injunction, a plaintiff
"must establish" that: (1) it is "likely to succeed on the merits";
3The District Court for the District of New Hampshire
separately issued an order provisionally certifying a class of
persons covered by the EO and entered a preliminary injunction
barring enforcement of the EO against the class. Barbara v. Trump,
No. 25-cv-244, 2025 WL 1904338 (D.N.H. July 10, 2025). No party
has suggested that Barbara has any bearing on these appeals. The
Government filed a petition for a writ of certiorari before
judgment in Barbara in the Supreme Court on September 26, 2025.
Pet. for Writ of Cert., Trump v. Barbara, No. 25-365 (U.S.
Sept. 26, 2025).
- 14 -
(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." Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20(2008). We review a grant of a preliminary injunction for abuse of discretion. Ashcroft v. ACLU,542 U.S. 656, 664
(2004). We review legal determinations de novo and findings of fact for clear error. Becky's Broncos, LLC v. Town of Nantucket,138 F.4th 73, 77-78
(1st Cir. 2025).
III. Standing
The Government does not question the District Court's
ruling that, under Armstrong v. Exceptional Child Center, Inc.,
575 U.S. 320, 327 (2015), the plaintiffs have equitable causes of
action to challenge the EO, its enforcement, and its implementation
for violating § 1401(a) and the Citizenship Clause. The Government
contends, however, that under Article III of the Constitution,
which provides that "the judicial Power of the United States"
extends to "Cases" and "Controversies," U.S. Const. art. III, § 2,
cl. 1, the State-Plaintiffs lack standing to bring these claims.
The Government contends that, for this reason alone, the
State-Plaintiffs cannot satisfy the "likelihood of success" prong
of the test for securing preliminary injunctive relief. We are
not persuaded. In addition, we conclude that the other plaintiffs
- 15 -
also have shown that they likely have Article III standing. See
Roe v. Healey, 78 F.4th 11, 21 n.8 (1st Cir. 2023) (noting federal
courts' independent obligation to confirm Article III standing).
A. Legal Framework
To have Article III standing, the plaintiff bears the
burden of showing that it has "(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision." Spokeo, Inc. v. Robins, 578 U.S. 330, 338(2016). An organization with individual members may establish Article III standing by satisfying the three elements of such standing based on an "injury in fact" of its own. FDA v. All. for Hippocratic Med.,602 U.S. 367
, 393-94 (2024). But such an organization also may establish "associational standing" to sue in a "representational capacity." Hunt v. Wash. State Apple Advert. Comm'n,432 U.S. 333, 343, 345
(1977); see Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll.,600 U.S. 181
, 199 (2023). To do so, under the test set forth in Hunt, the
organization must show that "(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose; and (c) neither
the claim asserted nor the relief requested requires the
- 16 -
participation of individual members in the lawsuit." 432 U.S. at
343.
Because these appeals concern preliminary rather than
permanent injunctions, the plaintiffs need only make a clear
showing that they are likely to succeed in establishing Article III
standing. See Murthy v. Missouri, 603 U.S. 43, 58 (2024). We look at the allegations in the plaintiffs' complaints and the evidence from the preliminary injunction proceedings. See Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist.,969 F.3d 12, 14
(1st Cir. 2020); Lujan v. Defs. of Wildlife,504 U.S. 555, 561
(1992).
B. The Doe-Plaintiffs' Article III Standing
As for O. Doe's Article III standing, the Government
does not challenge the District Court's determination that she
likely has it. Nor do we see how the Government could, given the
allegations in O. Doe's complaint that she is "an expectant mother"
who "is lawfully present in the country through Temporary Protected
Status," the father of her child "is not a U.S. citizen or a
[LPR]," and "the EO declares that [her child] will not be [a U.S.]
citizen[] and instructs federal agencies like Defendants DOS and
SSA to refuse to recognize [her child] as such, including by
denying [the child a] passport[] and Social Security number[] and
card[]." See CASA, 606 U.S. at 838n.2; see also Doe v. Israel,482 F.2d 156, 158
(1st Cir. 1973) ("[T]he necessarily short
- 17 -
duration of a pregnancy does not, in normal circumstances, create
mootness when pregnancy ceases.").
We also agree with the District Court that the two
organizations in the Doe-Plaintiffs' case likely have
associational standing under Hunt. Each has shown that it has
members who "would otherwise have standing to sue in their own
right," Hunt, 432 U.S. at 343, by identifying individual members
who are pregnant or expecting to become pregnant and whose
children, under the EO, would be denied passports and social
security numbers (SSNs) through the Enumeration at Birth (EAB)
program.4 See All. for Hippocratic Med., 602 U.S. at 381 ("An
injury in fact can be a physical injury, a monetary injury, an
injury to one's property, or an injury to one's constitutional
rights, to take just a few common examples."). Indeed, the
Government does not argue otherwise, nor do we see how it could.
See CASA, 606 U.S. at 838 n.2 ("The Government does not
4The EAB program enables parents of children born in the
United States to apply for SSNs for their children based on their
birth certificates, seemingly because "U.S. born children are
generally considered to be U.S. citizens and as such, are eligible
for SSNs [through the EAB program] without regard to the parents'
immigration status." Soc. Sec. Admin., State Processing
Guidelines for Enumeration at Birth 5 (2024),
https://perma.cc/2JFA-9QLM; see also Soc. Sec. Admin., Pub. No.
05-10023, Social Security Numbers for Children (2024),
https://perma.cc/WG9B-K5BD.
- 18 -
dispute -- nor could it -- that the individual plaintiffs have
standing to sue.").5
In addition, the organizations' § 1401(a) and
Citizenship Clause claims relate directly to the organizations'
immigrant-focused purposes and work, and so "seek[] to protect"
interests "germane" to the organizations' purposes. Hunt, 432
U.S. at 343. The claims also do not, in their nature, require individualized proof. Seeid. at 344
.
C. State-Plaintiffs' Article III Standing
In ruling that the State-Plaintiffs likely have
Article III standing, the District Court determined that the
State-Plaintiffs had shown that the EO, through its enforcement
and implementation, ensures that the children that it covers are
denied eligibility for certain federal programs that the
State-Plaintiffs administer through agreements with the federal
government. The District Court further determined that, because
these are programs through which the State-Plaintiffs provide
services to United States citizens for which the federal government
pays them, the EO's enforcement and implementation would
5The Government does not dispute the premise of the
plaintiffs' claims against the Secretary of DOS and the
Commissioner of SSA that the laws governing eligibility to obtain
a passport or an SSN through the EAB program do not permit persons
to be denied such documents if, under § 1401(a) or the Citizenship
Clause, those persons are United States citizens.
- 19 -
"directly" cause the State-Plaintiffs to lose federal funds that
they would otherwise be entitled to receive. The programs at issue
are the EAB program, Medicaid, Children's Health Insurance Program
(CHIP), special needs education programs under the Individuals
with Disabilities in Education Act (IDEA), and child welfare
services funded by Title IV-E of the Social Security Act.
The District Court relied in its ruling, in part, on
Biden v. Nebraska, 600 U.S. 477(2023). There, a group of states challenged the Executive Branch's decision to discharge the federal student loan obligations of many borrowers.Id. at 487-90
. One of those states, Missouri, premised its Article III standing on a contract that the Missouri Higher Education Loan Authority (MOHELA) -- a nonprofit government corporation of the state of Missouri -- had with the U.S. Department of Education (DOE) to service federal student loans.Id.
The Court explained that, under MOHELA's contract with
DOE, MOHELA received from the federal government "an
administrative fee for each of the five million [student loan]
accounts it services," yielding it roughly $89 million in revenue
in 2022. Id. at 489-90. The Court further explained that the
Executive Branch's challenged action would result in the complete
discharge of all loans for "roughly half of all federal borrowers,"
and that because MOHELA "could no longer service those closed
accounts," MOHELA stood to lose around $44 million in
- 20 -
administrative fees from the federal government each year. Id. at
490. The Court then held that this "financial harm [was] an injury in fact directly traceable to the [challenged Executive Branch action]" and thus sufficed to give Missouri, given its relation to MOHELA, standing under Article III.Id. at 490-92, 494
.6
In its most sweeping challenge to the State-Plaintiffs'
Article III standing, the Government relies on a footnote in United
States v. Texas, 599 U.S. 670 (2023). It argues that, in that
footnote, the Court established that "indirect effects on state
revenues or state spending" arising from a challenged federal
action -- there, the allegedly unlawful refusal by the Executive
We do not address whether the State-Plaintiffs also likely
6
have Article III standing based on various additional
administrative costs that they would incur to, among other things,
determine eligibility for the federally funded programs, train
staff, and revise guidance. As to the EAB program in particular,
the State-Plaintiffs contended below that they would "face
increased administrative burdens trying to secure SSNs for newborn
children through the EAB program," because "state facilities will
no longer be able to count on the fact of the child's birth at
their facility" as evidence that the child will qualify for an SSN
and so "will incur new costs to verify [the child's] parents'
immigration statuses." We note that the District Court observed
that, although the State-Plaintiffs had not advanced the theory in
any of their submissions to the District Court at that time, they
"also probably have standing based on their sovereign interests."
The District Court explained that the Citizenship Clause "defines
which individuals become birthright citizens . . . of the state in
which they reside . . . . [and] [s]tates have general sovereign
interests in which persons are their citizens." It then noted
that states "very likely also 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."
- 21 -
Branch to enforce immigration laws against persons within the
plaintiffs' states -- cannot suffice to secure Article III
standing. (Citing id.at 680 n.3.) The Government goes on to contend that the State-Plaintiffs' alleged loss of federal funds is the kind of "indirect" pocketbook injury that Texas deemed insufficient to secure Article III standing. Seeid.
We do not see how Texas undermines the State-Plaintiffs'
Article III standing. The State-Plaintiffs premise that standing
on their loss of federal funds to which they would be entitled
under various federal programs, not state funds that they would
have to expend to cover the costs imposed on them by an allegedly
unlawful failure to enforce federal law. See id.
The Government's related contention, based on Florida v.
Mellon, 273 U.S. 12(1927), is also unpersuasive. That precedent does not speak to whether a plaintiff's loss of federal funding to which it is otherwise entitled, resulting directly from a challenged federal action, suffices to secure Article III standing. Seeid.
As the Government acknowledges, Mellon merely rejected a state's claim that it "had standing to challenge federal policy on the basis that [the federal policy] 'induc[ed] potential taxpayers to withdraw property' and thereby diminished the State's tax base, explaining that such harms are 'purely speculative, and, at most, only remote and indirect.'" (Quotingid. at 17-18
.)
- 22 -
The Government separately argues that Nebraska does not
apply because the "direct link between the challenged federal
funding and the action[s] at issue [in that case] is distinct from
the attenuated relationship here." We are not convinced.
To the extent that the Government means to argue that
the State-Plaintiffs' loss of EAB funds is a less "direct injury"
than MOHELA's loss of administrative fees, we cannot see why that
would be so. In the preliminary injunction proceedings, the
Government did not dispute -- and in fact expressly agreed -- that
the EO would cause the State-Plaintiffs to lose out on fees under
the EAB program precisely because the EO directs that SSNs not be
issued under that program to children that the EO covers.7
As to the alleged loss of federal funds under Medicaid,
CHIP, special needs education programs under IDEA, and child
welfare services funded by Title IV-E of the Social Security Act,
7 The State-Plaintiffs filed a notice of supplemental
authority in this Court during the pendency of this appeal that
included SSA's guidance on how it intended to implement the EO
with respect to the EAB program. The guidance states that, even
after the EO was implemented, SSA would "[c]ontinue to receive the
data files from the States as [it does] today and reimburse states
for records received." (Emphasis added.) It is not evident that
this new guidance has any bearing on the preliminary injunction
itself, as the Government has not sought to modify the preliminary
injunction based on it. But, in any event, SSA's guidance states
that, upon receipt of an EAB application, SSA will conduct an
inquiry into the citizenship or immigration status of the
applicant's parents, thereby evidently making it futile to seek an
SSN through the program for a child that the EO covers if the EO
is enforced. The Government does not explain why that would not
be the case.
- 23 -
the Government argues as follows. It does not dispute that the
children that the EO describes would be eligible for those programs
if they were recognized as United States citizens. See 8 U.S.C.
§ 1611 (stating that non-qualified aliens as defined under § 1641
are "not eligible for any Federal public benefit"); 42 U.S.C.
§ 1396b(v)(1) (restricting Medicaid funding for "alien[s] who
[are] not lawfully admitted for permanent residence or otherwise
permanently residing in the United States under color of law").
But it contends that, insofar as these children will no longer
qualify for Medicaid and CHIP after the EO takes effect, the
State-Plaintiffs will be relieved of their obligation to provide
any Medicaid or CHIP services to these children. It then goes on
to argue that "the net effect of the federal action is not an
injury when, for example, the reduced obligation on the States to
provide care under Medicaid is larger than the reduction in federal
reimbursement."8
This argument appears to have no bite, however, as to
the "early-intervention and special-education services to certain
8 The Government does not dispute the premise of the
State-Plaintiffs' claims that, insofar as the EO would bar a child
whom the EO covers from receiving federally funded assistance under
the programs at issue, then the EO would be unlawful if either
§ 1401(a) or the Citizenship Clause secures birthright citizenship
to the children that the EO describes. For, here too, the
Government does not suggest that the laws governing eligibility
for these programs permit persons to be denied assistance if they
are United States citizens under that constitutional or federal
statutory provision.
- 24 -
children, including infants and toddlers" under IDEA. 20 U.S.C.
§§ 1400(d)(1)(A), (C)(2); 1412(a)(1)(C); 1433. The State-Plaintiffs maintain that they "must provide" those services regardless of a child's immigration status, and the State-Plaintiffs submitted declarations to that effect. Moreover, IDEA does not suggest otherwise on its face, see, e.g.,20 U.S.C. § 1433
, and the Government develops no argument that the
State-Plaintiffs are not obliged under IDEA to provide the services
in question.
More fundamentally, the Government's response fails to
grapple with the fact that, as in Nebraska, the challenged
governmental action -- here, the EO's implementation and
enforcement -- is alleged to result in the plaintiffs losing out
on federal funds by dispensing with their need to carry out their
agreement to provide a federally reimbursable service. See 600
U.S. at 490, 494. Indeed, in Singleton v. Wulff, the Court held that "there [was] no doubt" physicians who alleged that "they have performed and will continue to perform operations for which they would be reimbursed under the Medicaid program, were it not for the [challenged] limitation of reimbursable abortions to those that are 'medically indicated,'" had alleged "concrete injury from the operation of the challenged statute."428 U.S. 106, 112-13
(1976). And nothing in Nebraska,600 U.S. 477
, or Singleton,428 U.S. 106
, indicates that, for there to be injury in fact, the lost
- 25 -
federal payment must have been for an amount that would have
exceeded (or even equaled) the costs incurred by the plaintiff in
providing the federally reimbursable service.
Of course, the alleged loss of federal funds must be
fairly traceable to the EO. See Spokeo, 578 U.S. at 338. But,
insofar as the Government now means to dispute whether the loss of
federal funds is so traceable, we note that at the hearing on the
motion for preliminary injunction in the State-Plaintiffs' case,
the Government confirmed that it shared the State-Plaintiffs'
view, which was that the Government did not "dispute
that . . . federal funding will be lost."9
It should have come as no surprise to the Government,
then, that the District Court explained, with respect to the
9 The District Court asked the Government's counsel whether
"what follows from the [EO] is that Doe's child is not a citizen
under the [EO]." The Government's counsel answered, "Yes." The
District Court then asked the Government's counsel to confirm its
understanding that the State-Plaintiffs, in establishing their
Article III standing, "point to . . . various monies they get
based on people being citizens." The Government's counsel
responded, "Yes." The District Court next asked whether it was
true that the State-Plaintiffs would not get "the money they would
[otherwise] get for [rendering services to a child covered by the
EO] . . . if the executive order is in place." The Government's
counsel again answered, "Yes." Finally, the District Court
expressly attempted to confirm that the Government did not
"dispute[]" the State-Plaintiffs' claim that -- as a result of the
EO -- they would not receive certain federal reimbursements for
services rendered to the children at issue. The Government's
counsel so confirmed and also "conceded" as a "fact" that the
State-Plaintiffs "will lose that money."
- 26 -
directness of the link between the EO and the loss of the federal
funds, that
[State-Plaintiffs] receive federal funding to
cover portions of services like health
insurance, special education, and foster care
in amounts that depend on how many "eligible"
children receive such services. Citizenship
is one component of eligibility for purposes
of these programs. Pursuant to the EO, fewer
children will be recognized as citizens at
birth. That means the number of persons
receiving services who are "eligible" under
the identified federal programs will
fall -- and, as a direct result, the
reimbursements and grants the
[State-Plaintiffs] receive for these services
will decrease.
At oral argument in our Court, the Government did assert
that the EO "says nothing about who is or is not eligible for
federal benefits," and, thus, that the State-Plaintiffs' claimed
injuries are not "traceable to the EO itself." But the fact that
the EO does not expressly mandate the result that the
State-Plaintiffs allege is not inconsistent with the Government's
concession below that the loss of federal funds would result from
the EO's enforcement and implementation.
That concession also lines up with both the EO's
"purpose" section -- that "the privilege of United States
citizenship does not automatically extend to" the children in
question -- and the EO's enforcement directive -- that "[t]he heads
of all executive departments and agencies shall issue public
guidance within 30 days of the [EO] regarding [the EO's]
- 27 -
implementation with respect to their operations and activities."
90 Fed. Reg. at 8449-50, §§ 1, 3(b). That concession also aligns
with the State-Plaintiffs' allegations and declarations.
For these reasons, we cannot conclude that the District
Court clearly erred in finding -- given the Government's concession
about how its own actions would unfold under the EO -- that the
claimed loss of federal funds likely will be a direct result of
the EO's enforcement and implementation as in Nebraska, 600 U.S.
at 490, 494, rather than an indirect one as in Texas,599 U.S. at 680
n.3. See Dep't of Com. v. New York,588 U.S. 752, 767
(2019) (applying clear error review to district court's findings regarding the likely "result" of challenged government conduct and that such conduct would "lead to many of [the plaintiffs'] asserted injuries"); United States v. Gates,709 F.3d 58, 63
(1st Cir. 2013)
("[A] party cannot concede an issue in the district court and
later, on appeal, attempt to repudiate that concession and
resurrect the issue."); Nebraska, 600 U.S. at 490 ("This financial
harm is an injury in fact directly traceable to the Secretary's
plan, as . . . the Government . . . concede[s]."). We therefore
conclude that the State-Plaintiffs are likely to succeed in showing
that they have Article III standing as to their claims.10
10 Given the roles that DOS and DHS play in issuing
documents -- passports and citizenship cards, respectively -- that
can be proof of eligibility for programs implicated by the
- 28 -
D. State-Plaintiffs and Third-Party Standing
The Government's remaining objection concerning
"standing" is different. It relates to whether, even if the
State-Plaintiffs have Article III standing to assert their own
rights, they lack standing to "assert individual-rights claims of
their residents" -- and thus to assert the rights under the
Citizenship Clause and § 1401(a) of the children that the EO
covers. The District Court quite reasonably understood the
Government, in pressing this contention, to be arguing only that
the State-Plaintiffs could not rely on a parens patriae theory to
support their standing to assert the claims at issue. The
Government's opposition to the motion for preliminary injunction
invited precisely that understanding.
On appeal, the Government now appears to agree that the
District Court correctly determined that the State-Plaintiffs are
not directly relying on a parens patriae theory. After all, the
State-Plaintiffs are claiming their own Article III injuries in
asserting their standing to bring the claims at issue, not
Article III injuries only to their residents.
State-Plaintiffs' claims, see, e.g., 42 U.S.C. §§ 1396b(x)(3)(A),
1397ee(c)(9)(A), we see no reason to question the District Court's
Article III-standing ruling as to the State-Plaintiffs' claims
against the Secretary of DOS or the Secretary of DHS. We note,
too, that the Government does not itself question the District
Court's ruling as to the State-Plaintiffs' Article III standing
with respect to those claims apart from its challenges to
Article III standing that we have addressed.
- 29 -
Nonetheless, the Government advances the seemingly
distinct contention -- not clearly advanced in any of the
proceedings below -- that the State-Plaintiffs still lack
"standing" because they are making a "'thinly veiled attempt to
circumvent the limits on parens patriae standing,'
[Haaland v.] Brackeen, 599 U.S. [255, 295 n.11 (2023)], by
asserting derivative injuries from the alleged violations of
individuals' rights." Ordinarily, of course, arguments may not be
advanced for the first time on appeal. See Eldridge v. Gordon
Bros. Grp., 863 F.3d 66, 85 (1st Cir. 2017). But even if we were
to assume that the "circumvention" argument relates to our
Article III jurisdiction (and so may not be waived) or was
sufficiently raised below, it fails.
Neither Brackeen, 599 U.S. at 295 n.11, nor Murthy, 603
U.S. at 75-76, supports the argument. In each of those cases, the
State-Plaintiffs had no Article III injury of their own. The Court
therefore had no occasion in either case to address when, if ever,
a state that has been injured in fact may be barred from asserting
a claim on the ground that it is effectively asserting a parens
patriae theory. The same is true of South Carolina v. Katzenbach,
which addressed the assertion by a state of its rights under the
Due Process Clause of the Fifth Amendment and the Bill of Attainder
Clause of Article I, not the standing of a state to assert the
- 30 -
rights of third parties in seeking redress for its own injury in
fact. See 383 U.S. 301, 323-24 (1966).
That leaves only the Government's contention that,
independent of its concerns about the State-Plaintiffs
circumventing limits on parens patriae standing, they are barred
from bringing their claims by generally applicable prudential
limits on third-party standing. The District Court, again
understandably, did not perceive the Government to be making this
argument in opposing the motion for preliminary injunction, given
how the argument was framed at that time. Nor was it made in the
Government's stay motion to the District Court in any clear way,
given that the argument was framed in a way that tied it to limits
on parens patriae standing. As best we can tell, it first appeared
in a clearly recognizable form in the Government's motion to our
Court to stay the preliminary injunction pending this appeal. For
that reason, we are being asked to address this argument even
though it was not presented or passed upon below.
On this basis alone, there is reason to reject the
argument. B & T Masonry Constr. Co. v. Pub. Serv. Mut. Ins. Co.,
382 F.3d 36, 40-41 (1st Cir. 2004) ("[L]egal theories not raised
squarely in the lower court cannot be broached for the first time
on appeal." (quoting Teamsters Union v. Superline Transp. Co., 953
F.2d 17, 21 (1st Cir. 1992))). True, the argument concerns
"standing." But it concerns a prudential form of it that does not
- 31 -
implicate the three elements of Article III standing and so is
waivable. See June Med. Servs. L.L.C. v. Russo, 591 U.S. 299, 316–17 (2020) (plurality opinion);id.
at 354 n.4 (Roberts, C.J., concurring in the judgment) (agreeing "[f]or the reasons the plurality explains" that the plaintiffs "have standing to assert the constitutional rights of their patients"); Craig v. Boren,429 U.S. 190, 193
(1976); cf. Mata v. Lynch,576 U.S. 143, 150
(2015)
("[W]hen a federal court has jurisdiction, it also has a 'virtually
unflagging obligation . . . to exercise' that authority." (second
alteration in original) (quoting Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976))).
In any event, we also must reject the argument on the
independent ground that we see no basis for crediting it on the
record as it exists at this stage of the litigation. As the
State-Plaintiffs point out, the Citizenship Clause determines more
than whether a person is a citizen of the United States at the
time of their birth. It also determines whether that person is a
citizen of the state in which they reside. U.S. Const. amend. XIV,
§ 1. Thus, unlike all the cases that the Government relies on in
pressing this third-party standing argument, this is hardly a case
in which the plaintiff is seeking to litigate a dispute over a
constitutional provision that concerns only the interests of third
parties.
- 32 -
In addition, the State-Plaintiffs allege that the EO
operates directly against them by preventing them from
demonstrating that the children covered by the EO are eligible for
the federal programs at issue. The State-Plaintiffs therefore
contend that, unlike the case on which the Government primarily
relies, Kowalski v. Tesmer, this is a case in which "enforcement
of the challenged restriction against the litigant would result
indirectly in the violation of third parties' rights." 543 U.S.
125, 131(2004) (quoting Warth v. Seldin,422 U.S. 490, 510
(1975)).
The Government disputes that point. But it fails to
meaningfully dispute that the EO directs Executive Branch
officials not to deem the children that the EO covers as United
States citizens at birth. In fact, this effect of the EO is the
premise of the Government's concession in the preliminary
injunction proceedings that the State-Plaintiffs would lose
federal funding if the EO went into effect.
Thus, because those federal programs require the
State-Plaintiffs to verify the eligibility of those that they serve
under those programs, see, e.g., 42 U.S.C. § 1396a(a)(5), the EO
does directly operate against the State-Plaintiffs by precluding
the State-Plaintiffs from verifying the children's program
eligibility based on their being citizens of this country because
they were born here. In so doing, the EO, through its enforcement
- 33 -
and implementation, prevents the State-Plaintiffs from extending
federally reimbursable services to children covered by the EO who
would otherwise be entitled to them. See Dep't of Lab. v.
Triplett, 494 U.S. 715, 720 (1990) (holding that third-party
standing exists when "enforcement of a restriction against the
litigant prevents a third party from entering into a relationship
with the litigant . . . to which relationship the third party has
a legal entitlement").
By contrast, in Kowalski, the challenged governmental
action would not similarly have prevented the litigant from
entering into a relationship with a third party "to which
relationship the third party has a legal entitlement," Triplett,
494 U.S. at 720. In that case, there was no guarantee that the litigant (an attorney) would have been appointed to represent the rights-bearing third parties (unidentified indigent defendants) even if the challenged governmental measure were struck down. See Kowalski,543 U.S. at 127-28, 131
.
The Government separately argues that the "enforcement
against the litigant" basis for asserting third-party standing has
no application here because the EO imposes no "sanctions" on the
State-Plaintiffs. But a challenged regulation does not need to
carry the threat of punishment to sufficiently influence a
litigant's behavior to the detriment of a third party's rights,
- 34 -
such that the litigant may assert those rights in seeking redress
for its own injury in fact. See Triplett, 494 U.S. at 720.
In sum, the limitation on third-party standing "assumes
that the party with the right has the appropriate incentive to
challenge (or not challenge) governmental action." Kowalski, 543
U.S. at 129. At least as the record reveals thus far, this is not a case in which the rationale for the limitation on third-party standing -- "to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative," Craig,429 U.S. at 193
-- would apply, see Kozera v. Spirito,723 F.2d 1003, 1006
(1st Cir. 1983).
IV. § 1401(a), the Citizenship Clause, and Wong Kim Ark
We are now, at last, positioned to take up the
Government's challenges to the merits of the plaintiffs'
allegations that the EO's enforcement and implementation will
unlawfully deny birthright citizenship to the children that the EO
describes. Here, the plaintiffs invoke the guarantee of birthright
citizenship secured by 8 U.S.C. § 1401(a) and by the Citizenship
Clause of the Fourteenth Amendment.
The plaintiffs contend, of course, that they are likely
to succeed on the merits of their allegations based on these two
provisions. They acknowledge, though, that neither § 1401(a) nor
the Citizenship Clause guarantees birthright citizenship to all
- 35 -
persons born here. They recognize that these provisions guarantee
such citizenship only to those born "in the United States" while
they are "subject to the jurisdiction thereof." (Quoting U.S.
Const. amend. XIV, § 1; § 1401(a).)
Thus, because all the children that the EO covers are
"born . . . in the United States,"11 the dispute over the merits
11The Government appears to suggest otherwise based on Kaplan
v. Tod, 267 U.S. 228, 230(1925); United States v. Ju Toy,198 U.S. 253, 263
(1905); Nishimura Ekiu v. United States,142 U.S. 651, 661
(1892); and a law review note, Note, The Nationality Act of 1940,54 Harv. L. Rev. 860
, 861 n.8 (1941). But the Government waived this argument by making it for the first time in its reply brief. See United States v. Coviello,225 F.3d 54
, 70 n.10 (1st Cir. 2000). In any event, given the specific facts of those cases, they do not establish that a person born within the territory of the United States is not born "in the United States" within the meaning of the Citizenship Clause just because, at the time of the person's birth, the father was not an LPR or U.S. citizen and the mother was here unlawfully or temporarily. See Kaplan,267 U.S. at 229
(noting that "[t]he appellant was born in Russia," was brought to the U.S., "was ordered to be excluded" and then "was kept at Ellis Island . . . . until she could be deported safely"); Ju Toy,198 U.S. at 258, 260
("[T]he appellee [was] a person of
Chinese descent being held for return to China by the steamship
company which recently brought him therefrom to a port of the
United States, and who . . . was . . . denied admission . . . .");
Nishimura Ekiu, 142 U.S. at 652 ("[A] female subject of the emperor
of Japan [was] restrained of her liberty and detained at San
Francisco upon the ground that she should not be permitted to land
in the United States."). These cases also do not interpret the
Citizenship Clause or § 1401(a). See Kaplan, 267 U.S. at 230-31(affirming a warrant of deportation under various immigration laws that have since been amended, including the "Act of March 26, 1910"); Ju Toy,198 U.S. at 261-63
(upholding a dismissal of a habeas petition after interpreting Congress's authority over immigration affairs, an 1894 Act, and the Fifth Amendment); Nishimura Ekiu,142 U.S. at 660-63
(affirming an appellate court
order after interpreting "[t]he immigration act of August 3,
1882," "the act of March 3, 1891," and the Appointments Clause).
- 36 -
of the plaintiffs' claims depends, at bottom, on whether the
children are "subject to the jurisdiction" of the United States at
the time of their birth. We conclude that this dispute clearly
must be resolved in favor of the plaintiffs and, therefore, that
they clearly are likely to succeed on the merits of their § 1401(a)
and Citizenship Clause claims. To explain why, though, it first
helps to sketch the parties' basic positions as to the meaning of
the key phrase -- "subject to the jurisdiction thereof."
A. The Plaintiffs' View
The plaintiffs argue that both in 1952, when § 1401(a)
was enacted, and in 1868, when the Citizenship Clause was ratified,
the phrase "subject to the jurisdiction thereof" was understood to
codify Founding-era understandings of who becomes a United States
citizen upon being born here. Those understandings, according to
the plaintiffs, were drawn from the "jus soli" principle of the
English common law. In contrast to the "jus sanguinis" principle
that prevailed in some other countries, the jus soli principle
makes birth on the country's soil -- rather than birth to a parent
with certain ties to that country -- the determining factor of
nationality. (Quoting Wong Kim Ark, 169 U.S. at 667.)
The plaintiffs acknowledge that this ancient jus soli
principle was not absolute. For centuries, English common law
deemed those born on English soil to be English subjects at birth
- 37 -
only if, at the time of their birth, they were "within the
allegiance . . . of the king." (Quoting id. at 655.) But, the
plaintiffs assert, it was thought that such allegiance "attached
automatically to anyone . . . 'within the kingdom'" so long as the
person was "within the jurisdiction[] of the king." (Quoting id.)
The plaintiffs emphasize that the circumstances in which
a person born in English territory was not subject to the Crown's
"jurisdiction" -- or, as the plaintiffs describe it, "complete
authority" -- were few and far between. Those circumstances
existed only when, notwithstanding the sovereign's otherwise
complete and "exclusive sovereign authority" over those within its
territory, a person had some kind of immunity or exemption from
that authority. And that limitation on the Crown's authority was
understood to exist, as to a person born on English soil, at the
time of that person's birth, only as to the child born to the
family of a foreign ambassador, minister, or consul; to an alien
enemy hostilely occupying English territory; or on a foreign public
ship. In all other cases, the plaintiffs contend, "allegiance"
was "conferred automatically by birth within the sovereign's
territory," such that a person born in England was an English
subject by that fact alone.
The plaintiffs do acknowledge that one additional
limitation on the jus soli principle had been recognized in the
United States by 1868. This limitation followed from the
- 38 -
quasi-sovereign status of Native American tribes and the
accompanying partial waiver of complete authority over tribal
members that the United States had made in recognizing their
exemption from some generally applicable laws. (Citing Elk v.
Wilkins, 112 U.S. 94, 99-100 (1884) (describing Indian tribes as
"exempt from taxation by treaty or statute" and noting the default
rule that "[g]eneral acts of congress did not apply to Indians").)
Thus, the plaintiffs do not dispute that it was understood by 1868
that tribal members were not themselves "subject to the
jurisdiction" of the United States any more than were those persons
in the classes long thought under English common law to fall
outside the jus soli principle.
Based on this historical account of the phrase "subject
to the jurisdiction thereof," the plaintiffs contend that they are
likely to succeed on the merits of their § 1401(a) and Citizenship
Clause claims. After all, the EO does not cover only children who
are born members of Native American tribes or who are in any of
the circumstances historically excepted from the jus soli
principle. And, the plaintiffs contend, the words of the Clause,
including the critical phrase "subject to the jurisdiction
thereof," easily bear the construction that the plaintiffs contend
they were understood to have in 1868.
The plaintiffs add that, if there were any reason to
doubt their historically rooted account of that critical phrase's
- 39 -
meaning, the Supreme Court's 1898 decision in Wong Kim Ark makes
it clear that they are likely to succeed in showing that the
children that the EO covers are "subject to the jurisdiction" of
the United States at birth. They contend that Wong Kim Ark
interpreted the phrase "subject to the jurisdiction thereof" in
the Citizenship Clause to track English common law, save for the
additional limitation pertaining to Native Americans described
above. They thus maintain that, as a matter of binding Supreme
Court precedent, the EO violates the Citizenship Clause.
All that said, the plaintiffs separately contend that,
no matter how we might now read Wong Kim Ark to have construed the
Citizenship Clause or how we might understand the history up to
1868, we must construe § 1401(a) as it was understood when it was
passed in 1952. (Quoting United States v. Kozminski, 487 U.S.
931, 944-45 (1988) ("We draw no conclusions from this historical
survey about the potential scope of the Thirteenth Amendment," but
instead look to "the understanding of the Thirteenth Amendment
that prevailed at the time of [the relevant statute's]
enactment.").) The plaintiffs argue that the relevant materials
demonstrate that, as of 1952, § 1401(a)'s words were understood to
guarantee birthright citizenship in the broad manner that the
plaintiffs contend that those words guarantee it.
Section 1401(a), the plaintiffs argue, therefore guarantees
birthright citizenship to the children that the EO describes even
- 40 -
if the Government is right about what the Supreme Court decided
(or did not decide) in Wong Kim Ark.
B. The Government's View
The Government responds that neither the Citizenship
Clause nor § 1401(a) imported the English common law jus soli
principle into American law. The plaintiffs' contrary view, the
Government argues, wrongly equates "jurisdiction" with the mere
"power to regulate." The Government therefore contends that the
plaintiffs' view impermissibly renders the Citizenship Clause's
inclusion of the phrase referencing "jurisdiction" redundant,
given that the United States's "regulatory power extends to all
persons born on U.S. soil."
In the Government's view, as of 1868, a person was
understood to be "subject to the jurisdiction" of the United States
only if the person owed the United States "primary allegiance."
It explains that this "primary allegiance" view is the same as
that adopted by the Supreme Court in Elk. The Government relies
on the Court there having stated that "subject to the jurisdiction
thereof" means "not merely subject in some respect or degree to
the jurisdiction of the United States, but completely subject to
their political jurisdiction, and owing them direct and immediate
allegiance." (Quoting Elk, 112 U.S. at 102.) And, the Government
argues, a person was understood to be "'completely subject' to the
- 41 -
[United States's] 'political jurisdiction'" only if they were a
U.S. citizen or if they were domiciled in the United States.
Thus, in the Government's view, a child born in the
United States to a noncitizen mother who is here only temporarily
or unlawfully is not "subject to the jurisdiction" of the United
States when their father is a noncitizen who is not himself an
LPR. That is because, the Government argues, one must be
physically present here both lawfully and while having "an intent
to remain indefinitely" to be domiciled in the United States.
The Government also asserts that Wong Kim Ark comports
with this understanding. As the Government sees it, the Supreme
Court held there only that a child born to a noncitizen parent
domiciled in this country is, when born, "subject to the
jurisdiction" of the United States. In fact, the Government at
times even suggests that Wong Kim Ark must be read to hold that
children of noncitizen parents are citizens of this country only
if their mother is so domiciled. So, on this view, Wong Kim Ark
does not reject -- and may even endorse -- the domicile-based
limitation on the scope of the birthright citizenship guarantee.
Even so, the Government recognizes that we cannot
interpret "subject to the jurisdiction thereof" to contradict the
Supreme Court's own interpretation of those words. The Government
thus does not dispute that, if Wong Kim Ark construed those words
as the plaintiffs argue that we must construe them, then its
- 42 -
challenge to the merits of the plaintiffs' Citizenship Clause
claims necessarily fails. Nor does the Government appear to
dispute that, in such case, its merits-based challenge to the
plaintiffs' § 1401(a) claims also fails.
C. Analysis
Against this backdrop, we first zero in on the
plaintiffs' contention that their § 1401(a) claims are likely to
succeed on the merits even if the Government's view of what Wong
Kim Ark decided were correct. Because the plaintiffs are clearly
right on this score, we agree that they are likely to succeed for
this reason alone on the merits of their § 1401(a) claims. But,
as we also will explain, we conclude that Wong Kim Ark construed
the Citizenship Clause just as the plaintiffs contend that it did.
And so, in the end, we conclude that the plaintiffs are likely to
succeed on the merits of their claims three times over -- first,
in showing that the children that the EO describes are entitled to
birthright citizenship under § 1401(a) even if Wong Kim Ark must
be read as the Government urges us to read it; second, in showing
that those children are entitled to birthright citizenship under
that federal statutory provision because Wong Kim Ark may not be
so read; and third, in showing that, for the very same reason,
those children are entitled to birthright citizenship under the
Citizenship Clause itself.
- 43 -
1. § 1401(a)
Section 1401(a) was enacted as part of the Immigration
and Nationality Act (INA) in 1952. It provides, in relevant
part: "a person born in the United States, and subject to the
jurisdiction thereof" is a citizen of this country. 8 U.S.C.
§ 1401(a).
As a general matter, we treat a statute's words, unless
otherwise defined, "as taking their ordinary, contemporary, common
meaning . . . at the time Congress enacted the statute." Wis.
Cent. Ltd. v. United States, 585 U.S. 274, 284(2018) (alteration in original) (quoting Perrin v. United States,444 U.S. 37, 42
(1979)). There is a question, though, about whether we should
follow that approach in interpreting § 1401(a).
In referring to "person[s] born in the United States,
and subject to the jurisdiction thereof," § 1401(a) borrows from
the Citizenship Clause of the Fourteenth Amendment. And, in
general, "[w]here Congress employs a term of art 'obviously
transplanted from another legal source,' it 'brings the old soil
with it.'" George v. McDonough, 596 U.S. 740, 746(2022) (citation modified) (quoting Taggart v. Lorenzen,587 U.S. 554, 560
(2019)).
Thus, we can see how the old-soil principle might be
thought to suggest that what matters in construing § 1401(a) is
what the phrase "subject to the jurisdiction thereof" was
understood to mean at the time the Citizenship Clause became law
- 44 -
in 1868. See id. at 753 ("The point of the old-soil principle is
that 'when Congress employs a term of art,' that usage itself
suffices to 'adop[t] the cluster of ideas that were attached to
each borrowed word' in the absence of indication to the contrary."
(alteration in original) (quoting FAA v. Cooper, 566 U.S. 284, 292(2012))). The old-soil principle, however, is a tool for interpreting statutes, not abstractions. So, even under that principle, "[t]he real question is not what might be" the meaning of the phrase "in the abstract, but what the prevailing understanding" of this phrase was when "Congress . . . codif[ied] it." Id. at 741 (emphasis added); see also Sekhar v. United States,570 U.S. 729, 735
(2013) (looking to the understanding
"[a]t the time of the borrowing").
Consistent with this understanding, the Supreme Court in
United States v. Kozminski followed this time-of-enactment
approach in interpreting unusual words in another statute that
borrowed them directly from an amendment to the U.S. Constitution.
See 487 U.S. at 945 ("In the absence of any contrary indications,
[it] . . . give[s] effect to congressional intent by construing
'involuntary servitude' in a way consistent with the understanding
of the Thirteenth Amendment that prevailed at the time of [the
statute's] enactment." (emphasis added)); cf. Dir., Off. of
Workers' Comp. Programs, Dep't of Lab. v. Greenwich Collieries,
512 U.S. 267, 272, 275 (1994) ("We interpret Congress'[s] use of
- 45 -
the term . . . in light of th[e] history, and presume Congress
intended the phrase to have the meaning generally accepted in the
legal community at the time of enactment."). At oral argument,
the Government -- seemingly for the first time -- tried to
distinguish Kozminski on the ground that the federal statute there
was implementing legislation, under the Thirteenth Amendment, that
imposed criminal penalties. We are not persuaded.
Even if this argument for distinguishing Kozminski is
preserved, cf. Sparkle Hill, Inc. v. Interstate Mat Corp., 788
F.3d 25, 29(1st Cir. 2015), Kozminski did not rely for its time-of-enactment focus on those features of the statute,487 U.S. at 945-48
. Moreover, § 1401(a) itself seeks to implement a constitutional provision in guaranteeing at least the constitutional minimum that the Citizenship Clause secures. And, although § 1401(a) does not define a crime, it defines who is protected from, among other things, being removed from this country. Cf. Sessions v. Dimaya,584 U.S. 148, 156-57
(2018) (noting that the "most exacting vagueness standard" typically reserved for criminal cases applies to removal cases given the "grave" and "drastic" nature of deportation (quoting Jordan v. De George,341 U.S. 223, 231
(1951))). Finally, the statutory scheme reflects an intent to extend citizenship beyond the constitutional floor. See, e.g.,8 U.S.C. § 1401
(b) (extending citizenship to
"person[s] born in the United States to a member of an Indian,
- 46 -
Eskimo, Aleutian, or other aboriginal tribe"). We therefore see
no reason to conclude that Congress meant to hold § 1401(a) hostage
to future interpretations of the Citizenship Clause that would
narrow its scope from the scope that it was understood to have in
1952.
What matters in construing § 1401(a), then, is what the
unusual phrase "subject to the jurisdiction thereof" was
understood to mean when § 1401(a) became law in 1952. That said,
there is every indication that the phrase was understood to have
the same meaning at that time that it had when it appeared twelve
years before in the Nationality Act of 1940, ch. 876, § 201, 54
Stat. 1137, 1138 (1940). We therefore begin by reviewing the understanding of the phrase that prevailed in 1940 before then considering the import of Congress's recodification of the phrase in enacting § 1401(a) as part of the INA in 1952. See Kozminski,487 U.S. at 945-46
;id. at 948
(using "legislative history" to help determine the prevailing understanding of "the scope of [a] constitutional provision at the time [a federal statute] was enacted" given that "Congress chose to use . . . language" from that constitutional provision in the statute); cf. Greenwich Collieries,512 U.S. at 276
(determining that "Congress indicated
that it shared [a] settled understanding" of a term of art in the
APA).
- 47 -
a. The 1940 Precursor to § 1401(a)
The Nationality Act of 1940 was the product of years of
work by an interagency group that President Franklin Roosevelt
first convened in 1933 to "review the nationality laws of the
United States," "recommend revisions" to those laws, and "codify
those laws [and their recommendations] into one comprehensive
nationality law for submission to the Congress." Exec. Order No.
6115, "Revision and Codification of the Nationality Laws of the
United States" (Apr. 25, 1933). The committee was comprised of
thirteen representatives from DOS, the U.S. Department of Labor,
and the U.S. Department of Justice (DOJ), who were appointed by
their respective agency heads at the direction of the President.
See To Revise and Codify the Nationality Laws of the United Sates
into a Comprehensive Nationality Code: Hearings on H.R. 6127
Superseded by H.R. 9980 Before the H. Comm. on Immig. &
Naturalization, 76th Cong. 407 (Comm. Print. 1940) [hereinafter
Hearings].
In 1938, President Roosevelt submitted the committee's
draft code and comments to Congress, urging it to give "attentive
consideration" to this matter of "great importance." Id. at 406.
In its explanatory comments to the draft provision that -- word
for word -- became the corresponding provision of the Nationality
Act of 1940, the committee described its thinking.
- 48 -
The committee explained that the proposed legislation,
in providing that "[a] person born in the United States and subject
to the jurisdiction thereof" "shall be . . . [a] citizen of the
United States at birth," was merely expressing "a statement of the
common-law rule, which has been in effect in the United States
from the beginning of its existence as a sovereign state" and which
itself "accords with the [Citizenship Clause of] the [F]ourteenth
[A]mendment." Id. at 418. "The meaning of" the phrase "subject
to the jurisdiction thereof" in that Clause, the committee further
explained, "was discussed by Mr. Justice Gray[, the author of the
Court's opinion,] in United States v. Wong Kim Ark." Id. And
"[a]ccording to . . . Wong Kim Ark," the committee noted, "the
words in the [F]ourteenth [A]mendment to the Constitution, 'and
subject to the jurisdiction thereof,' were meant to except" three
exclusive groups: the "children of foreign sovereigns or their
ministers, or born on foreign public ships, or of enemies within
and during a hostile occupation of part of our territory, and the
single additional exception of children of members of the Indian
tribes owing direct allegiance to their several tribes." Id. at
429 (emphasis added) (quoting Wong Kim Ark, 169 U.S. at 693).
The committee recognized that Wong Kim Ark "related to
a person born to parents who were domiciled in the United States."
Id. at 418. It made clear, however, that "according to the
reasoning of the [C]ourt . . . the same rule is also applicable to
- 49 -
a child born in the United States of parents residing therein
temporarily." Id. (emphasis added). The committee further
explained that the Court's reasoning in Wong Kim Ark "was in
agreement" with the earlier "decision of the Court of Chancery of
New York," Lynch v. Clarke, 1 Sand. Ch. 583 (N.Y. Ch. Ct. 1844),
that the domicile of a U.S.-born child's parents was simply
irrelevant. "In other words," the committee stated, "it is the
fact of birth within the territory and jurisdiction, and not the
domicile of the parents, which determines the nationality of the
child." Hearings, at 418 (emphasis added).
The committee's views about the scope of birthright
citizenship under the common law and Wong Kim Ark did not appear
out of the blue. For over forty years before, DOS had issued
regulations interpreting the Citizenship Clause on the
understanding that it was "[t]he circumstance of birth within the
United States [that] makes one a citizen thereof, even if his
parents were at the time aliens, provided they were not, by reason
of diplomatic character or otherwise, exempted from the
jurisdiction of its laws." See U.S. Dep't of State, Regulations
Prescribed for the Use of the Consular Service of the United
States, ¶ 137 (1896); 22 C.F.R. § 79.137(1938); cf.id.
§ 79.157
(requiring "[n]ative citizens who apply for passports [to] submit
with their applications birth or baptismal certificates or
affidavits . . . as to the place and date of their births" -- not
- 50 -
information regarding their parent's domicile or immigration
status). Legal analyses by DOS and DOJ were to the same effect.12
There is scant evidence that in considering the
committee's proposed legislation members of Congress had a
different view than the committee. See, e.g., Hearings, at 49
(statement of Rep. Poage) (responding to testimony that "[i]n the
United States, insofar as the question of citizenship is concerned,
the doctrine of jus soli applies" by noting that "the Constitution
12 See Memorandum of the Office of the Solicitor for the
Department of State (Feb. 6, 1930), in 3 Green Haywood Hackworth,
Digest of International Law 10 (1942) (concluding that a child
"born in the United States" was "'subject to the jurisdiction
thereof[,]'[] within the meaning of the Fourteenth Amendment"
based on Wong Kim Ark, because it "d[id] not appear that the
mother . . . belonged to any one of the classes of aliens referred
to by [the Court] as enjoying immunity from the jurisdiction of
the United States," and because "there seem[ed] to be no question
but that [the mother] would have been subject to prosecution and
punishment under the laws of this country" if "she had committed
a murder or any other criminal offense" while present here);
Memorandum of the Office of the Legal Adviser of the Department of
State (July 17, 1933), in Hackworth, supra, at 13 (explaining
"[w]ith reference to the question of the meaning of the phrase
'subject to the jurisdiction of the United States,' the court in
the Wong Kim Ark case . . . stated that it meant 'subject to the
laws of the United States'"); Letter from the Attorney General,
H.R. Doc. No. 77-47, at 82 (1st Sess. 1941) (explaining that the
children of an "illegally resident alien" were "native-born
citizens of the United States" by virtue of their birth here);
see also, e.g., id. at 24-25 (referring to the child "born to"
parents who "entered the United States unlawfully" and "were not
in possession of immigration visas" as a "citizen minor child");
Facts in Cases of Certain Alien Deportations: Letter from the
Attorney General, H.R. Doc. No. 78-92, at 18-19 (1st Sess. 1943)
(referring to a "child born in this country" of parents "illegally
living in the United States" as a "citizen minor child"); id. at
51-52 (child of stowaways is a "minor citizen child").
- 51 -
makes that apply"). In fact, there is every indication that the
phrase "subject to the jurisdiction thereof" in the Nationality
Act was understood at the time of its 1940 enactment just as the
committee had understood that phrase. See George, 596 U.S. at 746
(explaining that when Congress "use[s] an unusual term that ha[s]
a long regulatory history in [the same] context," and "enact[s] no
new 'definition' or other provision indicating any departure from
the 'same meaning'" employed by the agency, the "prior agency
practice" bears on the meaning of that term).
Consistent with this assessment, a private bill that
Congress passed just months before the Nationality Act of 1940
became law reflects the same understanding. It "directed" the
Secretary of Labor "to cancel the outstanding orders and warrants
of deportation," 54 Stat. 1267 (1940), of Canadian citizens by
naturalization and their two Canadian-born daughters, H.R. Rep.
76-773 at 1-2 (1939).
The family had come to New York for a wedding and never
left or sought immigration visas to remain. See id.Notably, a House Report recommending passage referred to the daughter that the parents had while in the United States as an "American citizen" -- notwithstanding the report's explicit recognition that at the time of her birth the parents were unlawfully present in the United States.Id. at 1-2
. And the bill itself makes no
mention of that daughter, who, if a United States citizen in her
- 52 -
own right, would not have needed relief as the other family members
did.
b. The Recodification in 1952
There remains to consider whether the phrase "subject to
the jurisdiction thereof" was understood the same way when
Congress, using those very words, recodified the Nationality Act
of 1940 in the Immigration and Nationality Act of 1952. We see no
reason to conclude otherwise.
All indications are that the aim of the recodification
was to "carr[y] forward substantially those provisions of the
Nationality Act of 1940 which prescribe who are citizens by birth."
Revision of Immigration and Nationality Laws, S. Rep. No. 1137,
82d Cong. 2d 38 (1952); Revising the Laws Relating to Immigration,
Naturalization, and Nationality, H.R. Rep. No. 1365, 82d Cong. 2d
76 (1952) (same). For example, in a House Report, the Committee
of the Judiciary described Wong Kim Ark as determining
"whether . . . persons born in the United States of alien parents
are citizens." Id. at 25. The report continued by noting that
the Supreme Court held the Fourteenth Amendment's language to be
"but declaratory of the common-law principle . . . that all
persons, regardless of the nationality of their parents born within
the territorial limits of a State are ipso facto citizens of that
State." Id.; see also Revision of Immigration and Nationality
- 53 -
Laws, S. Rep. No. 1137, 82d Cong. 2d 38 (1952) ("The only
exceptions are those persons born in the United States to alien
diplomats." (emphasis added)). Thus, we see no reason to conclude
that the same broad understanding of birthright citizenship that
was prevailing in 1940 no longer was prevailing in 1952.
c. The Government's Response
The Government does assert that "at most," the meaning
of the Citizenship Clause in 1940 and 1952 was "contested." But
it offers no meaningful support for that contention.
The 1912 treatise that the Government relies on to
support its position in fact appears to support the plaintiffs'
contrary one. See Clement L. Bouvé, A Treatise on the Laws
Governing the Exclusion and Expulsion of Aliens in the United
States 427 (1912) [hereinafter Bouvé, A Treatise on the Laws
Governing Aliens] ("[T]he child born of alien parents who, though
under the immigration law they have no right to do so and are
subject at any time to deportation thereunder, are nevertheless
residing in the United States and owe temporary allegiance thereto,
is necessarily born in allegiance to, and, therefore, is a citizen
of this country."). The 1953 treatise on which the Government
also relies simply concludes that the "children
of . . . transients or visitors" count among the "exceptions" to
birthright citizenship without offering any support for the
- 54 -
assertion. Sidney Kansas, Immigration and Nationality Act
Annotated 188 (4th ed. 1953). That one treatise, thus, cannot
suffice to show -- given all the competing evidence of prevailing
views -- that Congress was not acting on a settled and contrary
understanding.
The Government does direct our attention to the 1907
regulations implementing the Chinese Exclusion Act. They exempted
from exclusion persons "born in the United States, of parents who
at the time of his birth have a permanent domicile and residence
in the United States." Regulations Governing the Admission of
Chinese r. 2 (Feb. 26, 1907), in Bureau of Immigration &
Naturalization, Dep’t of Com. & Lab., Doc. No. 54, Treaty, Laws,
and Regulations Governing the Admission of Chinese 33, 33
(July 1907).
These regulations predate, however, the decades during
which, as we noted above, DOS explicitly relied on the Fourteenth
Amendment to give effect to the jus soli principle. They predate,
too, the report from President Roosevelt's committee. Given the
clear evidence of that different understanding directly precursing
the Act's passage, these regulations do little more than show what
an agency may have thought decades before.
The Government also attempts to show the waters were
muddy in 1952 by highlighting a "Brief on the Law of Citizenship"
that was included as an appendix to a 1910 report from Assistant
- 55 -
Attorney General William Wallace Brown and which stated that Wong
Kim Ark, "when limited to its own facts and the law pronounced
thereon, . . . goes no further than to determine that the child
born to parents who are foreigners[,] but domiciled in the United
States and there engaged in business, is a citizen of the United
States." E.S. Huston, Brief on the Law of Citizenship, in Spanish
Treaty Claims Comm'n, U.S. Dep't of Just., Final Report of William
Wallace Brown, Assistant Attorney-General 121 (1910). That report
also precedes, however, the decades in which the plaintiffs' view
of the scope of the birthright citizenship guarantee was widely
shared.13
d. Conclusion
In short, the materials before us make clear that
Congress, when enacting § 1401(a), was recognizing the broad scope
of birthright citizenship that the plaintiffs identify. Thus, it
13 In their reply brief, the appellants point to additional
sources. But, even if we were to consider these late entries, cf.
United States v. Eirby, 515 F.3d 31, 36 n.4 (1st Cir. 2008) (stating that arguments raised for the first time in a reply brief are deemed waived), we note that one source predates even Wong Kim Ark, while the rest predate -- by decades -- the evidence as to what was understood in the run-up to the passage of the Nationality Act of 1940. Finally, for obvious reasons, we do not find persuasive the appellants' reference to failed legislative efforts in the wake of the Fourteenth Amendment. Rapanos v. United States,547 U.S. 715, 749
(2006) ("Failed legislative proposals are a
particularly dangerous ground on which to rest an interpretation
of a prior statute." (quoting Solid Waste Agency of N. Cook Cnty.
v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 160 (2001))).
- 56 -
is quite clear for this reason alone that the plaintiffs are likely
to succeed as to the merits of their § 1401(a) claims.
2. The Citizenship Clause and Wong Kim Ark
Because the plaintiffs' § 1401(a) claims suffice on
their own to support the preliminary injunctions, see Somerville
Pub. Schs. v. McMahon, 139 F.4th 63, 72 (1st Cir. 2025), we could
bypass the parties' additional dispute about what Wong Kim Ark
decided in 1898 regarding the meaning of "subject to the
jurisdiction thereof" in the Citizenship Clause. The Government
does not suggest, however, that § 1401(a) is narrower than the
Citizenship Clause as construed by Wong Kim Ark. Thus, if -- as
the plaintiffs contend -- Wong Kim Ark construed the phrase
"subject to the jurisdiction thereof" in the Citizenship Clause
the same way that they contend that the phrase was understood in
1952, then even the Government does not dispute that the plaintiffs
are likely to succeed on the merits of their § 1401(a) claims for
that reason as well. And, of course, in that event, the plaintiffs
also would be likely to succeed as to the merits of their
Citizenship Clause claims.
In these circumstances, we think it appropriate to
address the parties' thoroughly briefed dispute over the proper
way to understand the Court's decision in Wong Kim Ark. As we
will explain, that dispute must be resolved in a way that supports
- 57 -
the plaintiffs' position. And so, we conclude that the plaintiffs
clearly are likely to succeed as to the merits of all the claims
before us.
a. The Facts of Wong Kim Ark
Wong Kim Ark involved a challenge to a writ of habeas
corpus that had been granted to a young man who was born in San
Francisco in 1873 to Chinese nationals who were permanently
domiciled in San Francisco until their return to China in 1890.
Wong Kim Ark, 169 U.S. at 652-53. At the age of 17, the man, Wong Kim Ark, traveled with his parents to China when they returned there in 1890, before, seemingly without incident, he returned to the United States on his own that same year. Seeid. at 653
. But, in 1895, when he attempted to return to the United States after having made another temporary visit to China beginning the year before, federal authorities denied him entry and detained him pursuant to the Chinese Exclusion Act, Act of May 6, 1882, ch. 126,22 Stat. 58
. Id.; see also In re Wong Kim Ark,71 F. 382, 383
(N.D. Cal. 1896). He then petitioned for a grant of the writ
of habeas corpus. Id.14
14Although Wong Kim Ark based his habeas corpus action on the
Citizenship Clause, see In re Wong Kim Ark, 71 F. 382, 384 (N.D.
Cal. 1896), the question in that case did not turn, strictly
speaking, only on whether, under that Clause, he became a United
States citizen upon his birth in this country. It turned,
ultimately, on whether he was still a citizen when, in 1895, he
- 58 -
The Supreme Court affirmed the grant of the writ,
concluding that Wong Kim Ark was right that, at birth, he was a
citizen of the United States under the Citizenship Clause. See
Wong Kim Ark, 169 U.S. at 704-05. For that reason, the Court's
decision is of obvious significance to the merits of the
plaintiffs' claims under both that Clause and § 1401(a).15
b. Wong Kim Ark's Rationale
Wong Kim Ark began by explaining that the key words of
the Citizenship Clause, having not been defined there or elsewhere
in the Constitution, "must be interpreted in the light of the
common law, the principles and history of which were familiarly
known to the framers of the constitution." Id. at 654. The Court
then described the "fundamental principle of the common law with
regard to English nationality" as:
was denied entry and detained. See Wong Kim Ark, 169 U.S. at 704. Indeed, Wong Kim Ark argued not only that he was a citizen because he was born here, but also that he had never lost his citizenship, as "he ha[d] remained here until twenty-one and ha[d] elected an American nationality." Brief for the Appellee at 40, Wong Kim Ark,169 U.S. 649
. The Court agreed on that ultimate point as well. See Wong Kim Ark,169 U.S. at 704
("Whether any act of [Wong
Kim Ark], or of his parents, during his minority, could have
the . . . effect [of taking away or causing Wong Kim Ark to lose
his citizenship], is at least doubtful. But it would be out of
place to pursue that inquiry, inasmuch as it is expressly agreed
that his residence has always been in the United States, and not
elsewhere . . . .").
15 As noted previously, however, the plaintiffs' § 1401(a)
claims provide an independent basis upon which to grant the
preliminary injunction.
- 59 -
[B]irth within the allegiance -- also called
'ligealty,' 'obedience,' 'faith,' or
'power' -- of the king. The principle
embraced all persons born within the king's
allegiance, and subject to his protection.
Such allegiance and protection were
mutual . . . and were not restricted to
natural-born subjects and naturalized
subjects, or to those who had taken an oath of
allegiance; but were predicable of aliens in
amity, so long as they were within the
kingdom. Children, born in England, of such
aliens, were therefore natural-born subjects.
But the children, born within the realm, of
foreign ambassadors, or the children of alien
enemies, born during and within their hostile
occupation of part of the king's dominions,
were not natural-born subjects, because not
born within the allegiance, the obedience, or
the power, or, as would be said at this day,
within the jurisdiction, of the king.
Id. at 655. The Court explained that this "same rule was in force
in all the English colonies upon this continent down to the time
of the Declaration of Independence, and in the United States
afterwards, and continued to prevail under the constitution as
originally established." Id. at 658. It also rejected the
suggestion that by 1868 -- when the Fourteenth Amendment was
ratified -- "there was any settled and definite rule of
international law generally recognized by civilized nations,
inconsistent with the ancient rule of citizenship by birth within
the dominion." Id. at 667.
Based on this historical account, the Court concluded
that "[i]n the forefront . . . of the fourteenth amendment . . .,
the fundamental principle of citizenship by birth within the
- 60 -
dominion was reaffirmed in the most explicit and comprehensive
terms." Id. at 675. For, while the Court acknowledged that the
Fourteenth Amendment's "main purpose doubtless was . . . to
establish the citizenship of free negroes" denied in Dred Scott,
it also emphasized that "the opening words, 'All persons born,'
are general, not to say universal, restricted only by place and
jurisdiction." Id. at 676.
Wong Kim Ark did recognize that, in an earlier case, the
Court had held that the Citizenship Clause -- through the "subject
to the jurisdiction thereof" language -- recognized a "single
additional exception," id. at 693, to the ancient common law rule
of birthright citizenship, id. at 680. That exception pertained
to a child "born a member of one of the Indian tribes." See id.
(citing Elk, 112 U.S. 94). But Wong Kim Ark did not purport to
identify any other exception. See id. at 676 (explaining that the
Citizenship Clause, being "declaratory in form, and enabling and
extending in effect," "was not intended to impose any new
restrictions upon citizenship").16
16 We note that, independent of the common law-based
construction of the phrase "subject to the jurisdiction thereof,"
the Court recognized the "natural and inherent right" of
expatriation. Wong Kim Ark, 169 U.S. at 704(quoting An Act Concerning the Rights of American Citizens in Foreign States, ch. 249, § 1,15 Stat. 223
, 223 (1868)). The dissenters in Wong Kim Ark contended English common law did not recognize that "right," as they contended that the common law considered the ties of allegiance to be "indissoluble." Seeid. at 711-13
(Fuller,
- 61 -
Moreover, Wong Kim Ark explained that this one
additional exception had been recognized because the "meaning of"
the phrase "subject to the jurisdiction thereof" was "not merely
subject in some respect or degree to the jurisdiction of the United
States, but completely subject to their political jurisdiction,
and owing them direct and immediate allegiance." Id.at 680 (quoting Elk,112 U.S. at 102
). Wong Kim Ark went on to explain that Elk determined that, because "the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, but were alien nations," it followed that those born tribal members here were "no more 'born in the United States, and subject to the jurisdiction thereof,' . . . than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations."Id.
at 681 (quoting Elk,112 U.S. at 102
).
Thus, by way of summation, the Court in Wong Kim Ark set
forth the following critical conclusion midway through its
analysis:
C.J., dissenting). One treatise cited by the Government states,
however, that both the United States and England "expressly
repudiated" the old rule of indelibility: the United States by
statute in 1868 and England by statute in 1870. See Hannis Taylor,
A Treatise on International Public Law 217-18(1901).
- 62 -
The real object of the fourteenth amendment of
the constitution, in qualifying the words 'all
persons born in the United States' by the
addition 'and subject to the jurisdiction
thereof,' would appear to have been to
exclude, by the fewest and fittest words
(besides children of members of the Indian
tribes, standing in a peculiar relation to the
national government, unknown to the common
law), the two classes of cases, -- children
born of alien enemies in hostile occupation,
and children of diplomatic representatives of
a foreign state, -- both of which, as has
already been shown, by the law of England and
by our own law, from the time of the first
settlement of the English colonies in America,
had been recognized exceptions to the
fundamental rule of citizenship by birth
within the country.
Id. at 682.
That is not to say that Justice Gray -- the author of
the Court's opinion in Wong Kim Ark -- cut to the chase in reaching
this conclusion for the Court. His opinion ran over 50 pages and
canvassed the full range of authorities. See id. at 652-705. But
it is evident that he engaged in this comprehensive review to
support the conclusion, succinctly set forth in the passage above,
that "subject to the jurisdiction thereof" was a well-understood
and carefully chosen phrase that ensured the Clause mirrored the
ancient common law principle for determining nationality, while
allowing for a single additional, peculiarly American exception
pertaining to members of Native American tribes.
Consistent with this understanding of Wong Kim Ark,
Justice Gray, right after his crisp description of the "real
- 63 -
object" of the words "subject to the jurisdiction thereof," id. at
682, examined "the well[-]known case of The Exchange,"id. at 687
(referencing The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch.) 116 (1812)); see alsoid. at 684-87
. He did so because he explained that those words "must be presumed to have been understood and intended by the congress which proposed the amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall" in that case.Id. at 687
.
Justice Gray proceeded to explain that Chief Justice
Marshall's opinion in The Exchange used "like words" in accord
with the use that he had just attributed to the words in the
Citizenship Clause. Id.Noting that The Exchange concerned "the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country," Justice Gray explained that Chief Justice Marshall had no occasion to address "the anomalous case of the Indian tribes" or the "suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation."Id. at 683
. But, Justice Gray stated, "in all other respects," Chief Justice Marshall's opinion "covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof."Id.
And Justice Gray further explained that, in The
Exchange, Chief Justice Marshall described "the general principle"
- 64 -
that "[t]he jurisdiction of the nation within its own territory is
necessarily exclusive and absolute," id.at 683-84 (quoting The Exchange, 11 U.S. (7 Cranch.) at 136), subject only to those waivers of that jurisdiction that the sovereign itself chooses to make,id. at 684
.
Justice Gray thus noted that it was significant for
purposes of understanding the Citizenship Clause that Chief
Justice Marshall recognized in The Exchange that there are certain
"class[es] of cases in which every sovereign is understood to
waive . . . [its] complete exclusive territorial jurisdiction" by
recognizing an "immunity" or "exempt[ion] from . . . jurisdiction"
derived from the "political fiction" of extraterritoriality or the
consent of the sovereign. Id.at 684-85 (quoting The Exchange, 11 U.S. (7 Cranch.) at 137-39, 147). These classes were for "foreign sovereign[s]," "foreign ministers," foreign troops permitted to pass through the territory, and individuals on "public armed ship[s]" serving a friendly foreign state.Id.
at 684 (quoting
The Exchange, 11 U.S. (7 Cranch.) at 137-39, 147).
Moreover, Justice Gray explained, it was significant
that Chief Justice Marshall recognized that no such exemption could
be afforded to "other aliens" because:
When private individuals of one nation spread
themselves through another as business or
caprice may direct, mingling indiscriminately
with the inhabitants of that other, or when
merchant vessels enter for the purposes of
- 65 -
trade, it would be obviously inconvenient and
dangerous to society, and would subject the
laws to continual infraction, and the
government to degradation, if such individuals
or merchants did not owe temporary and local
allegiance, and were not amenable to the
jurisdiction of the country.
Id. at 685-86 (emphases added) (quoting The Exchange, 11 U.S. (7
Cranch.) at 144).
In fact, Justice Gray affirmatively endorsed that aspect
of temporary allegiance articulated in The Exchange when, in
setting forth his understanding of that decision's "conclusions,"
he stated the following:
It can hardly be denied that an alien is
completely subject to the political
jurisdiction of the country in which he
resides, seeing that, . . . 'independently of
a residence with intention to continue such
residence; independently of any
domiciliation; independently of the taking of
any oath of allegiance or of renouncing any
former allegiance, it is well known that by
the public law an alien, or a stranger born,
for so long a time as he continues within the
dominions of a foreign government, owes
obedience to the laws of that government, and
may be punished for treason or other crimes as
a native-born subject might be . . . .
Id.at 693-94 (quoting 6 The Works of Daniel Webster 526 (1851)); see also Carlisle v. United States,83 U.S. (16 Wall.) 147, 154-55
(1872) (quoting the same, and stating that "[t]he rights of
sovereignty . . . extend to all persons and things not privileged
that are within the territory," including "all strangers therein,
- 66 -
not only . . . to those who are domiciled therein," "but also to
those whose residence is transitory" (citing Richard Wildman, 1
Institutes of International Law 40 (1849))).
Justice Gray made the same point in addressing the import
of the Civil Rights Act of 1866, which had granted citizenship to
"all persons born in the United States, and not subject to any
foreign power, excluding Indians not taxed." See Wong Kim Ark,
169 U.S. at 688(emphasis added) (quoting Civil Rights Act of 1866, ch. 31, § 1,14 Stat. 27
, 27). He rejected the contention that the phrase "not subject to any foreign power" in the Civil Rights Act was "intended," "for the first time in our history, to deny the right of citizenship to native-born children . . . ."Id.
Instead, he explained, the Civil Rights Act "reaffirmed" "the fundamental principle of citizenship by birth within the dominion . . . in the most explicit and comprehensive terms,"id. at 675
, and "any possible doubt in th[at] regard was removed when the negative words of the civil rights act, 'not subject to any foreign power,' gave way, in the [Citizenship Clause], to the affirmative words, 'subject to the jurisdiction of the United States,'"id. at 688
.
Given the Court's rationale for ruling as it did, we
fail to see how we could read Wong Kim Ark to reject the plaintiffs'
construction of the phrase "subject to the jurisdiction thereof"
in the Citizenship Clause or even to leave open the question as to
- 67 -
whether that construction is right. The Court expressly tied the
phrase to the similar phrase in "the well[-]known case of The
Exchange." Id. at 687. And Justice Gray explained that, in The Exchange, Chief Justice Marshall treated all those present here as having a temporary allegiance to the United States and being subject to the jurisdiction of the United States -- "exclusive and absolute" as it is, The Exchange, 11 U.S. (7 Cranch.) at 136 -- unless they fall into one of the special classes of foreign nationals for which a person is not "subject to" United States jurisdiction because of an immunity or exemption from it owing to sovereign waiver, Wong Kim Ark,169 U.S. at 686
.
Finally, nothing in Wong Kim Ark suggested that the
waivers of complete jurisdiction that "every sovereign" has been
understood to make for certain classes of people -- namely, foreign
sovereigns and ministers, foreign troops, and those aboard public
armed ships, id.at 684 (quoting The Exchange, 11 U.S. (7 Cranch.) at 137-39, 147) -- extend in this country, outside the context of a foreign military occupation, beyond a "single additional exception," seeid. at 693
. That exception was the one for children born members of Native American tribes. Seeid.
We also find it significant, given the Fourteenth
Amendment's focus on the child, not the parent, see U.S. Const.
amend. XIV, § 1 ("All persons born . . . in the United
States . . . ."), that The Exchange's waiver-based justification
- 68 -
applies not only to the parent, but also to a child at the moment
of the child's birth. For example, when the parents are beyond
U.S. jurisdiction -- as where U.S. sovereignty is "suspended" due
to "military occupation," Wong Kim Ark, 169 U.S. at 683(quoting United States v. Rice,17 U.S. (4 Wheat.) 246, 254
(1819)) -- any child would equally be beyond its reach, see Inglis v. Trs. of Sailor's Snug Harbour,28 U.S. (3 Pet.) 99, 155-56
(1830) (opinion of Story, J.) (explaining that, for a person to acquire "allegiance by birth," he "must be born within a place where the sovereign is at the time in full possession and exercise of his power," and illustrating that "general doctrine" through several exceptions, including when the sovereign's dominion is "occupied . . . by conquest"). Similarly, in the case of Native American tribal members, ambassadors, or those on armed public ships, the justification for each sovereign waiver of complete jurisdiction applies independently to the child as much as to the parent. See Eileen Denza, 4 Diplomatic Law 319 (2016) (explaining that, since the 1700s, it has been "accepted" that "the wife and minor children" of diplomats "[a]re entitled to the same privileges and immunities as the diplomat himself"); McKay v. Campbell,16 F. Cas. 161, 167
(D. Or. 1871) (stating that a child born to a Native
American mother and a Canadian father would not be considered "born
subject to the jurisdiction of the United States" if he was "born
a member" of the tribe, but suggesting he would otherwise be "in
- 69 -
the allegiance" of the occupying power); Wong Kim Ark, 169 U.S. at
680 ("[A]n Indian born a member of one of the Indian
tribes . . . was not a citizen of the United States, as a person
born in the United States, 'and subject to the jurisdiction
thereof,' within the meaning of the clause in question." (emphasis
added));17 id. at 693 (noting that the Fourteenth Amendment
excludes "children . . . born on foreign public ships" (emphasis
added)).
c. The Government's Objections
The Government nonetheless argues, for a variety of
reasons, that Wong Kim Ark must be read to make "domicile" an
independent determinant of citizenship. Those reasons relate
either directly to what Wong Kim Ark itself said or, more
indirectly, to what the understanding was (in the Government's
view) at the time that Wong Kim Ark was decided or to what the
Wong Kim Ark described this exception in various ways, each
17
hinging on a tribal member's relationship to the United States as
a member of a "distinct political communit[y]." See 169 U.S. at
681; see alsoid. at 680-81
(explaining tribal members' exclusion from the Citizenship Clause because "Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes" were not "completely subject to [the United States's] political jurisdiction" (emphasis added));id. at 682
(explaining that the addition of "'subject to the jurisdiction thereof' would appear to have been to exclude . . . children of members of the Indian tribes" because the tribes "stand[] in a peculiar relation to the National Government");id. at 693
(explaining that the Citizenship
Clause does not apply to "children of members of the Indian tribes
owing direct allegiance to their several tribes").
- 70 -
Court itself has decided since. These arguments are all without
merit.
i. Coherence of the Exceptions Recognized in Wong Kim Ark
The Government contends that to form "a coherent
account" of the exceptions enumerated in Wong Kim Ark -- and, in
particular, the carve-out for the children born Native American
tribal members -- we must adopt the view of "political
jurisdiction" that makes the domicile of a child's mother of
critical import to whether the child is "subject to the
jurisdiction" of the United States upon being born here. We
disagree.
Wong Kim Ark's discussion of The Exchange, when paired
with its discussion of Elk, makes clear what was understood to be
the coherent basis for concluding that children born Native
American tribal members are not "subject to the jurisdiction" of
the United States. Due to the peculiar quasi-sovereign status of
tribes, the United States's otherwise "full and absolute
territorial jurisdiction" over those present here has been
voluntarily waived as to tribal members (albeit in part, rather
than in full) just as it has been waived (again, in part, rather
than in full) in the special classes of cases -- involving "foreign
ministers," friendly "sovereigns or their armies," and "public
- 71 -
ships of war" -- in which "every nation" is understood to have
waived "a part of it[]."18 Id. at 686.
This understanding of the phrase "subject to the
jurisdiction thereof" also fits comfortably with the Citizenship
Clause's text. Even if there is potential ambiguity as to the
scope of the words "subject to," there is nothing strange about
reading those words so that the Clause refers to those actually
subjected to United States law in full when "born . . . in the
United States" (as opposed to those, due to a sovereign waiver,
merely potentially subjected to it in full, like the members of
the aforementioned special classes). U.S. Const. amend. XIV, § 1.
In fact, if anything, the incoherence inheres in the
Government's view that "domicile" determines whether a
noncitizen's child is "subject to the jurisdiction" of the United
States. That view apparently treats a noncitizen who lacks such
a domicile as not "subject to the jurisdiction" of the United
States for purposes of the Citizenship Clause because that person
18This understanding was also reflected in the congressional
debates on the ratification of the Fourteenth Amendment. For
example, Senator Trumbull supposed that the United States "ha[d]
the power" to extend its laws over Native American tribes, but
that it chose not to do so because it "would be a violation of
[the United States's] treaty obligations." Cong. Globe, 39th
Cong., 1st Sess., 2887, 2894 (statement of Sen. Trumbull). And
given Wong Kim Ark's sovereign-waiver-based understanding of the
jurisdictional phrase, the Government's contention that the United
States departed from English common law in other respects regarding
Native Americans is of no consequence.
- 72 -
lacks allegiance to the United States. Yet, that view does not
dispute that under The Exchange that same person still "owe[s]
temporary and local allegiance" to this nation. Wong Kim Ark, 169
U.S. at 685 (emphasis added) (quoting The Exchange, 11 U.S. (7
Cranch.) at 144).
The Government's apparent view, then, is that such a
person is not "subject to the jurisdiction" of the United States
for purposes of the Citizenship Clause under Wong Kim Ark, even
though that same person is "amenable to the jurisdiction of the
country," and so not free to engage in the "continual infraction"
of our laws, under The Exchange. Id. at 685-86 (emphasis added)
(quoting The Exchange, 11 U.S. (7 Cranch.) at 144). The only way
to square that circle is to conclude, despite what Wong Kim Ark
said, that the phrase "subject to the jurisdiction" in the
Citizenship Clause has no relation to the discussion of who is
subject to the jurisdiction of the United States in The Exchange.
The Government offers no explanation for how such a
conclusion accords with Wong Kim Ark's explicit reliance on The
Exchange in construing the "like words" in the Citizenship Clause.
So, whatever other defects inhere in the Government's view of the
meaning of those words, a leading one is that its view cannot
account for the Court's construction of them in Wong Kim Ark. It
is worth noting, too, that the text of the Citizenship Clause
hardly compels the Government's domiciled-based reading, as it is
- 73 -
far from evident why the word "domicile" would not have been used
if it were understood to be so critical.19
ii. References to Domicile in Wong Kim Ark
The Government also seizes on the Court's "precise[]
identifi[cation]" of "the narrow question presented"20 in Wong Kim
Ark and subsequent statement of its holding in that case, which
referred to Wong Kim Ark's parents having a permanent domicile in
this country at the time of his birth. The Government argues that
19 One amicus advances the textual argument that, because the
Citizenship Clause makes a person a "citizen[] of the United States
and of the State wherein they reside," that "textual feature" shows
that the Clause was intended to incorporate a residency or domicile
requirement. See Corrected Amicus Brief of the State of Tennessee
in Support of Defendants-Appellants and Reversal 9 (emphasis
added). But, textually, that phrase, like the phrase that precedes
it, which makes individuals "citizens of the United States," U.S.
Const. amend. XIV, § 1, cl. 1, describes the benefit (state
citizenship) that flows to those who meet the requirements set
forth earlier in the Clause (being "born or naturalized in the
United States, and subject to the jurisdiction thereof," id.).
And, in any case, we are unable to square this reading of the
Citizenship Clause with Wong Kim Ark, which, for the reasons we
have already explained, cannot be read to impose a domicile
requirement under the Fourteenth Amendment.
20The question presented by the Court in Wong Kim Ark was as
follows: "[W]hether a child born in the United States, of parents
of Chinese descent, who at the time of his birth are subjects of
the emperor of China, but have a permanent domicile and residence
in the United States, and are there carrying on business, and are
not employed in any diplomatic or official capacity under the
emperor of China, becomes at the time of his birth a citizen of
the United States, by virtue of the first clause of the fourteenth
amendment of the constitution . . . ." 169 U.S. at 653.
- 74 -
these features of the Court's opinion show that the Court's holding
was "carefully cabined" to those facts.
The question "presented," however, appears to simply
draw much of its phrasing verbatim from the facts stipulated to by
the parties. See id. at 652-53. And, given the potential issues about expatriation during a person's minority that the case presented when filed, the references to domicile in the stipulated facts are not anomalous even if they do not bear on whether Wong Kim Ark was a citizen at birth under the Citizenship Clause. Seeid. at 704
("Upon the facts agreed in this case, the American
citizenship which Wong Kim Ark acquired by birth within the United
States has not been lost or taken away by anything happening since
his birth."). Moreover, as we have explained, the answer given to
the question presented, which was favorable to Wong Kim Ark, rested
on the jus soli-based rationale for defining citizenship that we
have described. See id. at 705 ("For the reasons above stated,
this court is of opinion that the question must be answered in the
affirmative." (emphasis added)).
There also is not a word in Justice Gray's lengthy
opinion setting forth its rationale that purports to explain why
the fact that Wong Kim Ark's parents had a permanent domicile in
San Francisco made Wong Kim Ark "subject to the jurisdiction" of
the United States at the time of his birth. By contrast, the
opinion begins by stating that the Citizenship Clause must be
- 75 -
construed in "light of the common law," id. at 654, and continues by spending page after page explaining the common law in terms that rendered domicile irrelevant to nationality,21 seeid.
at 655- 75, before then linking that critical phrase to Chief Justice Marshall's reasoning in The Exchange, seeid. at 683-87
.
We decline to conclude that Justice Gray either decided
only what he did not explain or explained only what he did not
decide. We note as well that two unusually interested readers of
his opinion -- the dissenters in Wong Kim Ark -- understood the
Court to have adopted the ancient common law rule. See id. at 705
(Fuller, C.J., dissenting) ("The [majority's] argument is
that . . . [the constitution] must be interpreted in the light of
the English common-law rule which made the place of birth the
criterion of nationality . . . .").
21 See, e.g., Wong Kim Ark, 169 U.S. at 657 ("By the common
law of England, every person born within the dominions of the
crown, no matter whether of English or of foreign parents, and, in
the latter case, whether the parents were settled, or merely
temporarily sojourning, in the country, was an English
subject . . . ." (quoting Alexander Cockburn, Nationality: Or the
Law Relating to Subjects and Aliens 7 (1869))); id. at 660
("Nothing is better settled at the common law than the doctrine
that the children, even of aliens, born in a country, while the
parents are resident there under the protection of the government,
and owing a temporary allegiance thereto, are subjects by birth."
(quoting Inglis v. Trs. of Sailor's Snug Harbour, 28 U.S. (3 Pet.)
99, 164 (1830) (opinion of Story, J.))); id. at 656 ("The question
of naturalization and of allegiance is distinct from that of
domicile." (quoting Udny v. Udny, [1869] 1 LR (HL) 441, 452 (appeal
taken from Scot.))).
- 76 -
In suggesting that the dissenters nonetheless
misapprehended the majority's decision, the Government points to
the references to domicile22 in the following passage:
The amendment, in clear words and in manifest
intent, includes the children born within the
territory of the United States of all other
persons, of whatever race or color, domiciled
within the United States. Every citizen or
subject of another country, while domiciled
here, is within the allegiance and the
protection, and consequently subject to the
jurisdiction, of the United States.
Id. at 693 (majority opinion) (emphases added). This language,
however, followed the Court's discussion of several Executive
Branch opinions regarding issues that arise from the United
States's conferral of United States citizenship on those born
abroad. See id. at 689-92.
22 The Government also highlights references to those
"resident" or "residing in the United States." But the Government
fails to develop an argument as to why we must understand Wong Kim
Ark to have used "domicile" and "residence" as synonyms, when the
opinion repeatedly used the terms in ways that suggested they had
distinct meanings. See, e.g., Wong Kim Ark, 169 U.S. at 693
(majority opinion) ("[I]ndependently of a residence with intention
to continue such residence; independently of any
domiciliation . . . ." (quoting Letter from Daniel Webster, Sec'y
of State, to Millard Fillmore, President of the United States,
reprinted in 6 The Works of Daniel Webster 526 (1851))); id. at
653, 705 ("domicile and residence"); cf. Brief for Appellants 31
("Domicile, recall, requires residence and an intent to remain
indefinitely."); Frederick A. Cleveland, American Citizenship as
Distinguished from Alien Status 39 (1927) ("'Residence' is of a
more temporary character than 'domicile.' 'Residence' simply
indicates the place of abode, whether permanent or temporary;
'domicile' denotes a fixed, permanent residence . . . .").
- 77 -
In that discussion, the Court reviewed circumstances in
which domicile was relevant to the naturalization of a person born
outside of the United States to a United States citizen. See id.at 689 (citing an 1869 opinion from Attorney General Ebenezer Hoar in which he concluded that "children born and domiciled abroad, whose fathers were native-born citizens of the United States, and had at some time resided therein, were, under the statute . . . citizens of the United States," but cautioning that this statutory conferral of citizenship could not extend to those "who have not come within our territory," lest the conferral of citizenship upon a foreign-born child who remains abroad interfere with the laws of the child's country of birth). And, earlier still in the opinion, Justice Gray observed that while naturalization laws restricted the right of citizenship "conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States," "nothing," including that restriction, could be understood "to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty."Id. at 674
.
So, in context, the evident purpose of the passage to
which the Government directs our attention was to emphasize the
breadth of the rule of birthright citizenship applicable to those
born within the United States under "our own established rule of
- 78 -
citizenship by birth in this country," id. at 692, relative to the more limited scope of United States citizenship conferred on those born outside the United States to a United States citizen. Thus, consistent with the quoted passage's use of the word "includes," we do not read the passage to have been intended to draw, for purposes of defining the Citizenship Clause's scope, a wholly unexplained distinction between those born in the United States to persons domiciled here and those born in the United States to persons not domiciled here. Seeid.
("The amendment, in clear
words and in manifest intent, includes the children born within
the territory of the United States of all other
persons . . . domiciled within the United States." (emphasis
added)).23
The Government additionally -- and seemingly
counterintuitively -- argues that the following language in Wong
Kim Ark supports its position:
It can hardly be denied that an alien is
completely subject to the political
jurisdiction of the country in which he
The Government also directs our attention to a passage that
23
reads: "Chinese persons . . . are entitled to the protection of
and owe allegiance to the United States, so long as they are
permitted by the United States to reside here; and are 'subject to
the jurisdiction thereof,' in the same sense as all other aliens
residing in the United States." (Quoting Wong Kim Ark, 169 U.S.
at 694 (emphases added).) But, as noted above, the Government
does not explain why references to "residence" support its
domicile-based rule, and, in any event, this passage is
unpersuasive for the same reasons as those set forth above, as
nothing in the opinion's reasoning appears to turn on domicile.
- 79 -
resides, seeing that, . . . 'independently of
a residence with intention to continue such
residence; independently of any
domiciliation; independently of the taking of
any oath of allegiance or of renouncing any
former allegiance, it is well known that by
the public law an alien, or a stranger born,
for so long a time as he continues within the
dominions of a foreign government, owes
obedience to the laws of that government, and
may be punished for treason or other crimes as
a native-born subject might be . . . .
Id.at 693-94 (quoting 6 The Works of Daniel Webster 526 (1851)). We do not disagree that this passage expresses the view that a person who is domiciled in a country must owe at least that degree of allegiance that is owed by a person who is merely temporarily present there. We fail to see, though, how this passage thereby supports the Government's view. It instead supports the conclusion that allegiance is a function of having a presence "within the dominion[]" of the sovereign,id. at 694
, not of having a domicile within the sovereign's territory, seeid.
(stating that temporary
visitors may even "be punished for treason or other crimes as a
native-born subject might be" (emphasis added)).
iii. Understandings at the Time of Wong Kim Ark
At times, the Government appears to argue that Wong Kim
Ark must have meant its references to domicile to cabin its
decision because of what "subject to the jurisdiction thereof" was
understood to mean from the time of ratification up to 1898. But
- 80 -
disagreement with Wong Kim Ark's construction of the Citizenship
Clause is not itself a basis to disregard that construction. What
is more, Wong Kim Ark's construction of the phrase at issue in
that Clause was hardly idiosyncratic at the time.
The debates in Congress over the proposed Fourteenth
Amendment and the Civil Rights Act of 1866 were rife with
statements premised on the same understanding of jurisdiction
recognized in The Exchange, reflected in the common law exceptions,
and endorsed later by the Court in Wong Kim Ark.24 That is
particularly true of the debates over whether children who were
members of Native American tribes were "subject to the
jurisdiction" of the United States.25 That the Citizenship Clause,
24 See Cong. Globe, 39th Cong., 1st Sess. 1151 (1866)
(statement of Rep. Thayer) (describing the Civil Rights Act as
"declaring that all men born upon the soil of the United States
shall enjoy the fundamental rights of citizenship"); id. at 2891
(statement of Sen. Cowan) (describing the Fourteenth Amendment as
"assert[ing] broadly that everybody who shall be born in the United
States shall be taken to be a citizen"); id. at 2892 (statement of
Sen. Conness) (describing the Fourteenth Amendment as "a simple
declaration that . . . human beings born in the United States
shall be regarded as citizens"). Notably, one Senator stated that
he knew of only "one instance" in which "a person may be born here
and not be a citizen" -- namely, "in the case of the children of
foreign ministers" under "a fiction" of extraterritoriality. Id.
at 2769 (statement of Rep. Wade).
25 See Cong. Globe, 39th Cong., 1st Sess. 2893 (1866)
(statement of Sen. Trumbull) ("Can you sue a Navajoe [sic] Indian
in court? Are they in any sense subject to the complete
jurisdiction of the United States? By no means. . . . If we want
to control the . . . Indians . . ., how do we do it? Do we pass
a law to control them? Are they subject to our jurisdiction in
- 81 -
unlike the Civil Rights Act of 1866, makes no express reference to
Native American children does not show otherwise.26
Wong Kim Ark also was hardly out of step with judicial
opinions, treatises, and other scholarly works of the era. The
that sense? Is it not understood that if we want to make
arrangements with the Indians . . . we do it by means of a
treaty?"); id. at 2895 (statement of Sen. Howard) ("The Indian who
is still connected by his tribal relation with the government of
his tribe is subject for crimes committed against the laws or
usages of the tribe to the tribe itself, and not to any foreign or
other tribunal . . . . The United States courts have no power to
punish an Indian who is connected with a tribe for a crime
committed by him upon another member of the same tribe." (emphases
added)); id. at 2893 (statement of Sen. Trumbull) ("Would the
Senator from Wisconsin think for a moment of bringing a bill into
Congress to subject these wild Indians with whom we have no treaty
to [our] laws and regulations . . . ? Would he think of punishing
them for instituting among themselves their own tribal
regulations? Does the Government of the United States pretend to
take jurisdiction of murders and robberies and other crimes
committed by one Indian upon another? Are they subject to our
jurisdiction in any just sense? They are not subject to our
jurisdiction. We do not exercise jurisdiction over them. It is
only those persons who come completely within our jurisdiction,
who are subject to our laws, that we think of making citizens; and
there can be no objection to the proposition that such persons
should be citizens.").
26 Senator Trumbull resisted the phrase "Indians not taxed"
that was used in that statute out of concern that it might be
interpreted literally, stating: "I am not willing to make
citizenship in this country depend on taxation. I am not
willing . . . that the rich Indian residing in the State of New
York shall be a citizen and the poor Indian residing in the State
of New York shall not . . . ." Cong. Globe, 39th Cong., 1st Sess.
2894 (1866) (statement of Sen. Trumbull). For that reason, Senator
Trumbull pushed for the adoption of the phrase "subject to the
jurisdiction thereof," which in his view excluded Indians -- "over
[whom the United States] do[es] not pretend to exercise any civil
or criminal jurisdiction" -- without being susceptible of a reading
which would make citizenship "depend on taxation." Id.
- 82 -
case law that the Government identifies shows that domicile was
considered sufficient to establish allegiance. See The Pizarro,
15 U.S. (2 Wheat.) 227, 246 (1817) (Story, J.) ("[A] person
domiciled in a country, and enjoying the protection of its
sovereign . . . owes allegiance to the country . . . ."). That
case law does not establish a settled view that domicile was
necessary to do so. Cf. Wong Kim Ark, 169 U.S. at 663 ("By th[e]
circumstance of his birth, he is subjected to the duty of
allegiance . . . and becomes reciprocally entitled to the
protection of that sovereign . . . ." (quoting Gardner v. Ward, 2
Mass. 244 (1805))); id. at 685 ("His minister would owe temporary
and local allegiance . . . ." (quoting The Exchange, 11 U.S. (7
Cranch.) at 139)); id. at 685-86 (describing merchants as owing
"temporary and local allegiance" (quoting The Exchange, 11 U.S. (7
Cranch.) at 144)); Lynch, 1 Sand. Ch. at 638, 664. Indeed, the New Jersey Supreme Court's decision in Benny v. O'Brien, which adopted the Government's domicile-based view and on which the Government relies,32 A. 696
, 698 (N.J. 1895) (describing the Civil Rights Act and Fourteenth Amendment as intending to except persons "born in this country of foreign parents who are temporarily traveling here"), was described by the United States itself in Wong Kim Ark as an innovation, see Brief for the United States at 25-26, Wong Kim Ark,169 U.S. 649
(acknowledging that the "element"
- 83 -
of "the temporary residence of the parents" had been "introduced
for the first time" in that case).
The Government also invokes various treatises of the day
in arguing for its reading of Wong Kim Ark. Some of those
treatises, however, were relied on by the dissent in Wong Kim Ark.
See Wong Kim Ark, 169 U.S. at 708(Fuller, C.J., dissenting) (quoting 1 Travers Twiss, The Law of Nations Considered as Independent Political Communities 231 (1861); Emmerich de Vattel, The Law of Nations 101, § 212 (1797)). Others relied on arguments that the majority in Wong Kim Ark expressly rejected. Compare id. at 678 (majority opinion) (rejecting as dicta language in the Slaughter-House Cases,83 U.S. (16 Wall.) 36
(1872)), with Hannis Taylor, A Treatise on International Public Law 218 (1901) (predicating its view that citizens or subjects of foreign states are not United States citizens on the same language in the Slaughter-House Cases); Alexander Porter Morse, A Treatise on Citizenship 248 (1881) (same). And still others relied on administrative practice that again was relied on by the dissent in Wong Kim Ark, while the majority cited favorably to contrary administrative views. See Wong Kim Ark,169 U.S. at 691
(Fuller,
C.J., dissenting) (citing opinion by Secretary of State Thomas
Bayard regarding passport denial); William Edward Hall, A Treatise
on International Law 237 n.1 (4th ed. 1895) (interpreting the
Citizenship Clause based on an "administrative gloss" that
- 84 -
included the same passport denial). More generally, having
reviewed the treatises cited by the Government in support of its
view, we discern from them no settled view contrary to the one we
understand Wong Kim Ark to have adopted as to the scope of
birthright citizenship in the United States.
The Executive Branch practice of the time on which the
Government relies, as we have just indicated, similarly fails to
show that Wong Kim Ark's references to domicile must have been
intended to cabin the ruling. It was the dissenters in that case
who relied on that practice. See Wong Kim Ark, 169 U.S. at 719(Fuller, C.J., dissenting). The majority, by contrast, favorably quoted Secretary of State Hamilton Fish's correspondence stating that "[t]he qualification[,] 'and subject to the jurisdiction thereof[,] was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.'"27 Seeid. at 690
(majority
opinion) (quoting Correspondence of Hamilton Fish, Sec'y of State
(May 19, 1871), reprinted in 2 A Digest of the International Law
of the United States 394 (Francis Wharton ed., 2d ed. 1887)). In
any event, there is nothing unusual about a court declining to
27 As for congressional practice, the Government points only
to a bill, proposed by Representative Ebenezer Hoar six years after
the Fourteenth Amendment was ratified, which stated that "a child
born within the United States of parents who are not citizens, and
who do not reside within the United States . . . shall not be
regarded as a citizen thereof." See 2 Cong. Rec. 3279 (1874).
- 85 -
give weight to isolated instances of Executive Branch opinion and
practice in construing the Constitution. See NLRB v. Noel Canning,
573 U.S. 513, 572 (2014) (Scalia, J., concurring in the judgment)
(explaining that "open, widespread, and unchallenged" practice has
"guide[d]" courts' interpretation of "ambiguous constitutional
provision[s]").28
iv. Post-Wong Kim Ark Precedents
Finally, we are not persuaded by the Government's
contention that the Supreme Court adopted its domicile-based view
in subsequent precedent: Chin Bak Kan v. United States, 186 U.S.
193(1902), and Kwock Jan Fat v. White,253 U.S. 454
(1920). Chin Bak Kan does no more than quote the language describing the facts of Wong Kim Ark that we have already addressed above. See186 U.S. at 200
. Kwock Jan Fat simply describes the status of the petitioner's parents without assigning any particular significance to the permanent nature of that status. See253 U.S. at 457
("It
is not disputed that if petitioner . . . was born to them when
they were permanently domiciled in the United States, [he] is a
citizen . . . .").
28 Insofar as the Government means to suggest that, because
the domiciliary status of Chinese nationals in this country was
relevant to legal issues in some contexts, that status must have
been relevant in the citizenship context as well, the Government
does not explain, nor do we see, why that would be so.
- 86 -
In addition, following Wong Kim Ark, the Supreme Court
has itself repeatedly described U.S.-born children, even of
unlawfully present individuals, as citizens. See United States ex
rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73, 75(1957) (stating that a child, born in the United States to "alien parents illegally residing in the United States" "is, of course, an American citizen by birth"); INS v. Rios-Pineda,471 U.S. 444, 446
(1985) (stating that a child "who, born in the United States, was a citizen of this country," even though the parents were unlawfully present and the child's father had previously been apprehended and failed to voluntarily self-deport as promised); INS v. Errico,385 U.S. 214, 215
(1966) (noting that a child born to a parent who
made a false representation in his visa application nonetheless
"acquired United States citizenship at birth").
There also is Plyler v. Doe, 457 U.S. 202(1982). In that case, the Supreme Court described Wong Kim Ark as "detail[ing] at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term 'jurisdiction' was used."Id.
at 211 n.10 (emphasis added). The Court went on
to explain that, "given the historical emphasis on geographic
territoriality, bounded only, if at all, by principles of
sovereignty and allegiance, no plausible distinction with respect
to Fourteenth Amendment 'jurisdiction' can be drawn between
resident aliens whose entry into the United States was lawful, and
- 87 -
resident aliens whose entry was unlawful." Id. (citing Bouvé, A
Treatise on the Laws Governing Aliens 425-27).29
This reading of Wong Kim Ark and of the Fourteenth
Amendment's jurisdictional provision as primarily focused on
territory accords with our independent analysis of Wong Kim Ark.
We would be hard-pressed to ignore the weight of this authority,
all of which accords with the plaintiffs' view.
d. Conclusion
When the smoke clears, what remains is the direct
statement about the purpose of the words of the Fourteenth
Amendment's Citizenship Clause that Wong Kim Ark plainly set forth.
That statement follows seamlessly from the rationale that the Court
gave for attributing that purpose to those words. And, of course,
the words themselves -- "subject to the jurisdiction
thereof" -- easily bear such a construction. As a result, Wong
Kim Ark on its own requires us to reject the Government's
29Indeed, the Bouvé treatise cited repeatedly by the Court
in Plyler v. Doe, see 457 U.S. 202, 212 n.10, 227 n.22 (1982), concluded that children born to unlawfully present parents would unequivocally be citizens of the United States, see Bouvé, A Treatise on the Laws Governing Aliens 425-27. Bouvé concluded that this was so notwithstanding that such parents in theory "never acquired a lawful domicile in the sense that they were never entitled to enter for the purpose of establishing a home." Id. at 426. The Plyler Court expressly endorsed Bouvé's view, stating that "illegal entry into the country would not, under traditional criteria, bar a person from establishing domicile within a State."457 U.S. at 227
n.22.
- 88 -
contention that the plaintiffs are not likely to succeed on the
merits of their claims under the Citizenship Clause. And, given
that the Government does not dispute that § 1401(a) secures
birthright citizenship to at least all those entitled to it under
the Constitution, Wong Kim Ark thus shows that the plaintiffs are
likely to succeed as to the merits of all the claims at issue.
Nor is it of any consequence that the plaintiffs are
bringing a facial challenge. Any denial of citizenship on the
grounds set forth in the EO would, in light of Wong Kim Ark,
contravene the Citizenship Clause and § 1401(a). See United States
v. Salerno, 481 U.S. 739, 745 (1987).
V. Equitable Factors
Even though we conclude that the plaintiffs are, as the
District Court concluded, "exceedingly likely" to succeed on the
merits of their claims, we are not yet done with our review. The
plaintiffs also "must establish," to secure preliminary injunctive
relief, (1) that they are "likely to suffer irreparable harm in
the absence of preliminary relief," (2) "that the balance of
equities tips in [their] favor," and (3) "that an injunction is in
the public interest." Winter, 555 U.S. at 20. We cannot agree
with the Government that any of the plaintiffs have failed to do
so.
- 89 -
A. Doe-Plaintiffs
The District Court determined that there was "a grave
risk of significant and irreparable harm arising from the EO" to
the Doe-Plaintiffs. The District Court explained that "[t]he loss
of birthright citizenship -- even if temporary and later restored
at the conclusion of litigation -- has cascading effects" that
will "very likely leav[e] permanent scars" on the child and their
family. That permanence stems from the fact that "children born
without a recognized or lawful status face barriers to accessing
critical healthcare, among other services, along with the threat
of removal to countries they have never lived in and possible
family separation."
The Government understandably makes no argument that the
District Court erred on this score. See Ortega Cabrera v. Mun. of
Bayamón, 562 F.2d 91, 102 n.10 (1st Cir. 1977) (concluding that a party's failure to make an argument "on appeal" means that the party "waived any such claim"). It nonetheless argues that the balance of equities favors it because the preliminary injunction "inflicts irreparable injuries on the government and the public, whose interests 'merge' in this context," (quoting Nken v. Holder,556 U.S. 418, 435
(2009)), by barring the President from "carrying
out his broad authority [over] and constitutional responsibility"
for immigration matters.
- 90 -
In support, the Government cites INS v. Legalization
Assistance Project of the Los Angeles County Federation of Labor,
510 U.S. 1301(1993) (O'Connor, J., in chambers). But there, Justice O'Connor determined that the government was likely to succeed in showing that the plaintiffs, to whom the preliminary injunction had been granted, lacked Article III standing to bring their claims.Id. at 1305-06
. By contrast, the Doe-Plaintiffs
both have standing and are likely to succeed on the merits in
showing that the enforcement and implementation of the EO would be
unlawful.
The Government is not irreparably harmed by an
injunction issued to parties with Article III standing that bars
enforcement of an unlawful executive order. See New Jersey, 131
F.4th at 41. Accordingly, we agree with the District Court that
the equitable factors in this case "tip decisively toward the
[Doe-Plaintiffs]."
B. State-Plaintiffs
The Government first argues as to the equitable factors
that the State-Plaintiffs "have failed to show that any such
injuries occurring between now and final judgment would be
irreparable" because the State-Plaintiffs have not demonstrated
that any loss of federal funds "could not be recovered through
submission of claims after final judgment or through the
- 91 -
administrative procedures applicable to those programs." But,
even assuming post-judgment payments of wrongfully withheld
federal funds would remedy part of the State-Plaintiffs' harm, the
District Court found that the State-Plaintiffs face
"administrative upheaval."30
Indeed, the State-Plaintiffs point to "irreparable
harms" stemming from the "intensive alterations to their
eligibility verification systems for these federal programs" that
they would need to undertake to determine who is eligible for
benefits under the Executive Order. Without a preliminary
injunction, the State-Plaintiffs claim that they would face
unrecoverable costs that they would have to incur to "overhaul
[their verification] systems" -- for example, the costs to modify
their systems to "incorporate information about the immigration
status of a child's parents," to "implement new measures for
processing applications and tracking citizenship status," to
"train staff . . . on new policies and procedures," and to "revise
existing guidance and manuals regarding eligibility."
The Government disputes none of this in any meaningful
way. We thus cannot conclude that the District Court has abused
The Government has not advanced any argument that the
30
irreparable harm inquiry must necessarily be tethered to the injury
that gives a party standing. As such, any argument to that effect
is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
- 92 -
its discretion in finding the State-Plaintiffs to have established
irreparable harm.
The Government does again argue that the "equities and
public interest" weigh in favor of denying injunctive relief
because such relief "prevents the President from carrying out his
broad authority [over] and constitutional responsibility" for
immigration matters. But, again, the Government relies on
Legalization Assistance Project of the Los Angeles County
Federation of Labor, 510 U.S. at 1305-06, which, as we have
explained, has no application here.
Given that the public has a substantial interest in
ensuring that those entitled to be recognized as United States
citizens are not unlawfully deprived of that recognition, the
District Court did not abuse its discretion in finding that the
public interest and balance of equities factors "tip decisively
toward the [State-Plaintiffs]." Cf. New Jersey, 131 F.4th at 41
(finding the same in denying a stay of the preliminary injunction
pending appeal). In fact, to say that the public has no interest
in ensuring that those who deserve to be counted among its
citizenry are so counted, is to misconceive the public's interest.
So, we conclude that the District Court did not abuse its
discretion in granting preliminary injunctive relief as to the
State-Plaintiffs.
- 93 -
VI. Scope of the Relief
The final set of issues that we must address concerns
the proper scope of preliminary injunctive relief. We begin with
the Doe-Plaintiffs' case.
A. Doe-Plaintiffs
The Government raises no issues with respect to the scope
of the preliminary injunction barring the EO's enforcement against
O. Doe herself. But it does contend that the preliminary
injunction issued to bar the EO's enforcement against members of
the two organizations in the Doe-Plaintiffs' case is overbroad.
That is so, according to the Government, because the injunction
bars the agency officials subject to it from enforcing the EO as
to "any member" of those organizations. As the Government puts
it, the injunction is impermissibly broad because it purportedly
covers "unidentified" and "uninjured members" of the organizations
"for whom they have made no claim of standing."
To the extent that the Government means to argue that
the preliminary injunction may bar enforcement of the EO as to
only the two members whom the organizations identified in seeking
associational standing, we cannot agree. Both organizations set
forth allegations in their complaint about the broad number of
members "who are undocumented or in the United States on temporary
statuses and who are either pregnant or plan to grow their families
- 94 -
in the future" and that "[t]hese members will experience severe
and immediate harm if the EO is allowed to take effect." After
all, we are considering this case in the context of a preliminary
injunction, which requires plaintiffs to show -- among other
things -- only that they are "likely to suffer irreparable harm in
the absence of preliminary relief." Winter, 555 U.S. at 20
(emphasis added).
To the extent that notice to the Government about the
scope of the injunction is the concern, we note that, as the
plaintiffs point out, the Government did not raise the concern
about unidentified members below. That newly raised issue may be
addressed on remand, as consideration may then be given to the
proper procedure for ensuring that the Government has requisite
notice as to whom it may not enforce the EO against under the
preliminary injunction.
B. State-Plaintiffs
As to the injunction in the State-Plaintiffs' case, the
District Court did not order relief to any purported non-party.
It instead issued a "universal" injunction to give "complete
relief" to the State-Plaintiffs themselves. The District Court
explained that the State-Plaintiffs' harms "stem from the EO's
impact on the citizenship status -- and the ability to discern or
verify such status -- for any child located or seeking various
- 95 -
services within their jurisdiction." This harm, the District Court
found, results not only when "children born and living [in the
States] are unlawfully denied citizenship," but also whenever "a
family moves to" one of the States "after welcoming a new baby" in
a "state that has not joined this lawsuit."
Nothing in CASA provides that, as a categorical matter,
it is improper for a district court to impose an injunction of
such breadth if it is necessary to do so to provide the plaintiff
with complete relief. See 606 U.S. at 853-54. Nor did CASA suggest that it would be improper for the District Court here to order such an injunction as a means of providing the State-Plaintiffs complete relief. Seeid.
At the same time, CASA did not hold that it would be
proper in this case and under these circumstances. See id.It left that question to the "lower courts."Id. at 854
.
Accordingly, following CASA, we remanded the case to the
District Court for the limited purpose of determining the effects,
if any, of the Supreme Court's ruling on the scope of the
preliminary injunction. See Doe v. Trump, 142 F.4th at 112. The
District Court began by noting that it awarded "universal or
nationwide relief" originally, on February 13, 2025, because the
"uncontested factual record produced by the plaintiffs" at that
time demonstrated that any lesser injunction "would be
'inadequate' protection against the harms [that] the plaintiffs'
- 96 -
uncontested declarations described." In other words, in issuing
the preliminary injunction, the District Court found that there
was no workable, narrower alternative, given the showing that the
State-Plaintiffs had made and the Government's failure to explain
why that was not the case. The District Court then determined
that nothing in CASA itself called its initial determination about
the scope of relief into question. It also noted that the
Government, post-CASA, had not advanced any arguments or
identified any evidence in the record that sufficed to do so.
Crucially, as the State-Plaintiffs point out, the ground
that the Government now presses to us for concluding that the
District Court erred in granting relief of this breadth was not a
ground that it raised to the District Court in the preliminary
injunction proceedings prior to the appeal.31 So, although the
Government contends that we are not to look to the remand
proceedings following CASA nor the accompanying record developed
in those proceedings, the Government is in no position to object
to the State-Plaintiffs' attempt on remand to address the
workability of a narrower injunction. That narrower injunction
was not claimed by the Government to be workable before the
District Court until the remand.
The Government proposes in this regard that an injunction
31
"requiring the federal government to determine eligibility for
[the State-Plaintiffs'] programs without regard to the Executive
Order" would provide complete relief to the State-Plaintiffs.
- 97 -
Of course, the Government is right that the defendants
"need not 'write' the injunction themselves." United States v.
Zenon, 711 F.2d 476, 478(1st Cir. 1983). But the Government "must state their objections to the injunction . . . so that the district court can consider them and correct the injunction if necessary."Id.
The conclusory, single paragraph below in the pre-CASA preliminary injunction proceedings that the Government now points to only argues that "nationwide relief" is not "justif[ied]." Indeed, it was not until its stay motion in this Court that the Government attempted to explain that a narrower injunction was available to provide complete relief to the State-Plaintiffs. But "a party is not at liberty to articulate specific arguments for the first time on appeal simply because the general issue was before the district court." Eldridge,863 F.3d at 84
(quoting United States v. Slade,980 F.2d 27, 31
(1st Cir. 1992)).
We note as well that the Government, on remand following
CASA, "elected not to develop . . . in [the District Court]" even
the "narrower proposals" discussed in CASA, see 606 U.S. at 854.
As the District Court noted, "[a]t no point ha[s] the [Government]
fleshed out how any narrower injunction would work." The District
Court explained that the Government has "never addressed what
renders [any narrower injunction] feasible or workable, how the
defendant agencies might implement [a narrower injunction] without
imposing material administrative or financial burdens on the
- 98 -
plaintiffs, or how [any proposal would] square[] with other
relevant federal statutes."
Thus, it is no surprise that, when presented with even
more uncontroverted evidence by the State-Plaintiffs about the
need for an injunction of the current breadth, the District Court
again found that a narrower injunction would leave unremedied
"administrative and financial harms." We therefore decline to
conclude that the District Court has abused its discretion in
fashioning relief. See Philip Morris, Inc. v. Harshbarger, 159
F.3d 670, 680(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 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" (quoting Zenon,711 F.2d at 478
)).
VII. Conclusion
Our nation's history of efforts to restrict birthright
citizenship -- from Dred Scott in the decade before the Civil War
to the attempted justification for the enforcement of the Chinese
Exclusion Act in Wong Kim Ark -- has not been a proud one. Indeed,
those efforts each have been rejected, once by the people through
constitutional amendment in 1868 and once by the Court relying on
that same amendment three decades later, and at a time when
- 99 -
tensions over immigration also were high. Even the denial of
citizenship to Native American tribal members no longer persists,
thanks to a statute passed more than a century ago. See Indian
Citizenship Act of 1924, ch. 233, 43 Stat. 253(codified at8 U.S.C. § 1401
(b)).
The "lessons of history" thus give us every reason to be
wary of now blessing this most recent effort to break with our
established tradition of recognizing birthright citizenship and to
make citizenship depend on the actions of one's parents rather
than -- in all but the rarest of circumstances -- the simple fact
of being born in the United States. United States v. Di Re, 332
U.S. 581, 595 (1948). Nor does the text of the Fourteenth
Amendment, which countermanded our most infamous attempt to break
with that tradition, permit us to bless this effort, any more than
does the Supreme Court's interpretation of that amendment in Wong
Kim Ark, the many related precedents that have followed it, or
Congress's 1952 statute writing that amendment's words in the U.S.
Code.
The District Court's order for entry of the preliminary
injunctions is affirmed in part, vacated in part, and remanded for
further consideration consistent with this decision.
- 100 -
Reference
- Status
- Published