State Of Washington V Trump
FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2025
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
STATE OF WASHINGTON; STATE OF No. 25-807
ARIZONA; STATE OF ILLINOIS; STATE D.C. No.
OF OREGON; DELMY FRANCO
2:25-cv-00127-JCC
ALEMAN; CHERLY NORALES
CASTILLO; ALICIA CHAVARRIA
LOPEZ, OPINION
Plaintiffs - Appellees,
v.
DONALD J. TRUMP; UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY; SOCIAL SECURITY
ADMINISTRATION; UNITED STATES
DEPARTMENT OF STATE; MARCO
RUBIO, in his official capacity as United
States Secretary of State; UNITED
STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES; DOROTHY
FINK, in her official capacity as Acting
Secretary of United States Department of
Health and Human Services; DOJ -
UNITED STATES DEPARTMENT OF
JUSTICE; PAMELA BONDI, Attorney
General; UNITED STATES
DEPARTMENT OF AGRICULTURE;
GARY WASHINGTON, Acting Secretary
of the United States Department of
Agriculture; UNITED STATES OF
AMERICA; KRISTI NOEM, in her official
capacity as Secretary of Homeland Security;
JEFF WU, Acting Administrator, Centers
for Medicare and Medicaid Services;
CENTERS FOR MEDICARE AND
MEDICAID SERVICES; FRANK
BISIGNANO, Commissioner of Social
Security,
Defendants - Appellants.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted June 4, 2025
Seattle, Washington
Before: Michael Daly Hawkins, Ronald M. Gould, and Patrick J. Bumatay, Circuit
Judges.
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Bumatay
GOULD, Circuit Judge:
Washington, Arizona, Illinois, and Oregon (“States”) and individual expectant
mothers (“Individual Plaintiffs”) challenge as unconstitutional Executive Order No.
14160 (“Executive Order”), which purports to deny citizenship to the children born
in United States territory of parents temporarily or unlawfully present in the United
States. See Protecting the Meaning and Value of American Citizenship, Exec. Order
No. 14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). The district court entered a universal
preliminary injunction which bars implementation of the Executive Order.
Defendants appeal, contending that the States lack standing to challenge the
Executive Order, that it was error to issue a preliminary injunction, and that the scope
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of the injunction is overbroad.
We address whether the Executive Order is constitutional and valid. We
conclude that the Executive Order is invalid because it contradicts the plain language
of the Fourteenth Amendment’s grant of citizenship to “all persons born in the
United States and subject to the jurisdiction thereof.” We have jurisdiction under 28
U.S.C. § 1292(a)(1).
Because the Individual Plaintiffs are covered by a certified class action in
another federal court, 1 we decline to exercise jurisdiction over their claims and
dismiss them. But because State Plaintiffs have standing and are likely to succeed
in demonstrating that the Executive Order is unconstitutional, we affirm the district
court’s grant of a preliminary injunction and its determination that a universal
preliminary injunction is necessary to give the States complete relief on their claims.
I. FACTS AND PROCEDURAL HISTORY
A
The Fourteenth Amendment was adopted after the Civil War, in order to reject
and refute the holding of Dred Scott v. Sandford, 60 U.S. 393, 403 (1857), which in
substance held that slaves and descendants of slaves were not citizens of the United
States, and “to put citizenship beyond the power of any governmental unit to
destroy.” Afroyim v. Rusk, 387 U.S. 253, 263 (1967).
1
“Barbara,” et al. v. Trump, No. 25-cv-244-JL-AJ, 2025 WL 1904338 (D. N.H.
July 10, 2025).
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When the Fourteenth Amendment was ratified, whether birthright citizenship
applied to the children of noncitizens was still an open question. But the Supreme
Court answered that question in United States v. Wong Kim Ark, 169 U.S. 649
(1898). When the case was decided, Chinese nationals in the United States were not
permitted to become citizens. See Chinese Exclusion Act, ch. 126, § 14, 22 Stat. 58,
61 (1882). Chinese laborers could not re-enter the United States if they left. See
Scott Act, ch. 1064, 25 Stat. 504 (1888). Chinese laborers were also required to
obtain a certificate of residence, and non-laborer Chinese persons were subject to a
harsh presumption that they were unlawfully present. See Geary Act, ch. 60, 27 Stat.
25 (1892).
Against that backdrop, the Supreme Court considered the case of Wong Kim
Ark, a Chinese-American man who was denied reentry to the United States, despite
being born in the United States. Wong Kim Ark, 169 U.S. at 652–53. The Supreme
Court canvassed English common law, early American decisions, and citizenship’s
meaning to the Fourteenth Amendment’s drafters and then held that the Citizenship
Clause stands for “the fundamental rule of citizenship by birth within the dominion
of the United States, notwithstanding alienage of the parents[.]” Id. at 68, 692–93.
For that reason, although Wong Kim Ark’s parents would have been unable to
naturalize or even return to the United States, Wong Kim Ark acquired United States
citizenship “by birth within the United States.” Id. at 704–05. Since Wong Kim Ark
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was decided in 1898, and until this challenged Executive Order, the Judiciary,
Congress, and the Executive Branch have consistently and uniformly protected the
Citizenship Clause’s explicit guarantee of birthright citizenship regardless of the
immigration status of an individual’s parents.
B
On January 20, 2025, President Trump issued an Executive Order titled
“Protecting the Meaning and Value of American Citizenship.” Exec. Order No.
14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). Section 1 of the Executive Order states
in relevant part,
the privilege of United States citizenship does not automatically extend to
persons born in the United States:
(1) when that person’s mother was unlawfully present in the United
States and the father was not a United States citizen or lawful permanent
resident at the time of said person’s birth, or
(2) when that person’s mother’s presence in the United States at the
time of said person's birth was lawful but temporary (such as, but not limited
to, visiting the United States under the auspices of the Visa Waiver Program
or visiting on a student, work, or tourist visa) and the father was not a United
States citizen or lawful permanent resident at the time of said person’s birth.
90. Fed. Reg. at 8449.
Section 2 states that it is the “policy of the United States” that no federal
department or agency shall issue documents recognizing such persons as United
States citizens or accept documents issued by state governments recognizing such
persons as citizens if they are born 30 days from the date the Executive Order was
issued. Id.
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Section 3 directs the Secretary of State, Attorney General, Secretary of
Homeland Security, and Commissioner of Social Security to “take all appropriate
measures to ensure that the regulations and policies of their respective departments
and agencies are consistent with this order” and mandates that officials cannot “act,
or forbear from acting, in any manner inconsistent with this order.” Id. at 8449–50.
C
The day after the President signed the Executive Order, the States filed a
complaint and motion for a temporary restraining order. The district court granted
the temporary restraining order. Shortly thereafter, the Individual Plaintiffs filed a
putative class action. The district court consolidated the cases, and the States and
Individual Plaintiffs filed a consolidated complaint. Each group of plaintiffs moved
for a preliminary injunction.
On February 6, 2025, the district court granted a preliminary injunction,
enjoining Defendants from enforcing or implementing the Executive Order on a
universal basis. The district court concluded that the States had standing and that
the Individual Plaintiffs’ standing was undisputed. On the merits, the district court
concluded that the Executive Order likely violates both the Constitution and the
Immigration and Nationality Act (INA). The district court also concluded that the
States would suffer “irreparable economic harm in the absence of preliminary
relief,” and that the Individual Plaintiffs faced the irreparable harm of “constitutional
infringement and the specter of deportation.” Finally, the district court concluded
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that the balance of the equities and public interest strongly weighed in favor of
entering a preliminary injunction, because “the rule of law is secured by a strong
public interest that the laws ‘enacted by their representatives are not imperiled by
executive fiat.’” The district court granted a universal injunction after determining
that a geographically limited injunction would be ineffective to relieve the States’
financial and administrative burdens.
After the district court granted its injunction, other courts throughout the
country also enjoined implementation and enforcement of the Executive Order. See
Doe v. Trump, No. 25-cv-10135, 25-cv-10139, 2025 WL 485070, at *14–16 (D.
Mass. Feb. 13, 2025) (universal injunction); CASA, Inc. v. Trump, No. 25-cv-00201,
2025 WL 408636, at *16–17 (D. Md. Feb. 2, 2025) (universal injunction); N.H.
Indonesian Cmty. Support v. Trump, No. 25-cv-00038, 2025 WL 457609, at *6 (D.
N.H. Feb. 11, 2025) (injunction “with respect to any individual or entity . . . within
the jurisdiction of this court”). The Supreme Court accepted review on the scope of
the injunction and held that the universal scope of the injunction was impermissible
insofar as it was based on individual and associational plaintiff standing, leaving
open the question whether the universal injunction may be justified in order to give
complete relief to the appellee States. Trump v. CASA, Inc., 606 U.S. ____, No.
24A884, 2025 WL 1773631 (June 27, 2025). The district court of New Hampshire
has since provisionally certified a nationwide class of plaintiffs and issued a
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classwide preliminary injunction, which it stayed until July 17, 2025, pending appeal
in the First Circuit. See “Barbara,” et al. v. Trump, No. 25-cv-244-JL-AJ, 2025 WL
1904338 (D. N.H. July 10, 2025).
II. STANDARD OF REVIEW
A district court’s grant of a preliminary injunction, including the injunction’s
scope, is reviewed for abuse of discretion. Hecox v. Little, 104 F.4th 1061, 1073
(9th Cir. 2024). “A district court abuses its discretion if it rests its decision ‘on an
erroneous legal standard or on clearly erroneous factual findings.’” Am. Beverage
Ass’n v. City & County of San Francisco, 916 F.3d 749, 754 (9th Cir. 2019) (en
banc). Legal conclusions are reviewed de novo while factual findings are reviewed
for clear error. K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015).
III. STANDING
Because a “question of appellate jurisdiction must always be resolved before
the merits of an appeal are examined or addressed,” we first address the questions of
standing. In re Application for Exemption from Elec. Pub. Access Fees by Jennifer
Gollan & Shane Shifflett, 728 F.3d 1033, 1036 (9th Cir. 2013) (internal quotation
marks and citation omitted). “[S]tanding must be met by persons seeking appellate
review, just as it must be met by persons appearing in courts of first instance.”
Hollingsworth v. Perry, 570 U.S. 693, 705 (2013) (internal quotation marks and
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citation omitted). “All that is needed to entertain an appeal” on an issue, however,
“is one party with standing.” Brnovich v. DNC, 594 U.S. 647, 665 (2021).
Under Article III of the United States Constitution, a plaintiff has standing if
the plaintiff can show (1) an “injury in fact” that is concrete and particularized and
actual or imminent, not hypothetical; (2) that the injury is fairly traceable to the
challenged action of the defendant; and (3) that it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560–61 (1992). Under this general rule, standing requires
a showing of injury, causation, and redressability. See id.
A. STATE PLAINTIFFS
The Supreme Court has held that a state has standing to bring suit where the
federal government’s action directly reduces the number of individuals that a state
entity serves, causing a loss of revenue that the state would have otherwise received
under an existing federal contract. See Biden v. Nebraska, 600 U.S. 477, 490 (2023);
see also Dep’t of Com. v. New York, 588 U.S. 752, 767–68 (2019) (finding standing
where the inclusion of a citizenship question was likely to lead to the undercounting
of the states’ populations, and that this undercounting would cause states to lose out
on federal funds distributed on the basis of state population); City & Cnty. of San
Francisco v. United States, 981 F.3d 742, 754 (9th Cir. 2020) (holding that states
had standing to challenge a DHS rule that would render immigrants likely to
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participate in federal programs inadmissible and ineligible for permanent residence
status, thereby decreasing enrollment in public benefits and federal payments to the
states).
Here, the States contend that the Executive Order would cause them an
economic injury by defunding and requiring substantial changes to existing public
programs such as Medicaid, the Children’s Health Insurance Program (CHIP), Title
IV-E foster care, and Social Security Act (SSA)’s Enumeration at Birth program.
The States have presented evidence that more than 1100 infants born each month in
the Plaintiff States would be subject to the Executive Order. If those infants are
denied citizenship, they will be ineligible for federally-backed state-run programs
such as Medicaid, CHIP, and Title IV-E foster care. States generally do not receive
federal reimbursements based on services to individuals who do not have a lawful,
qualifying immigration status. The States accordingly allege that they will lose
millions of dollars of contracted reimbursements that they would otherwise receive.
Also, federal law requires the States to determine whether each resident served
by federal benefits is eligible. See, e.g., 42 U.S.C. § 1396b(v); 8 U.S.C. §§
1611(a)(c)(1)(B); 42 C.F.R. § 435.406. Because current State systems rely on birth
certificates, place of birth, or Social Security Numbers (SSNs) to determine
eligibility, the States contend that they will need to create new systems to determine
citizenship and maintain compliance with federal law. The States also contend that
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they will lose “administrative fees” that they would otherwise receive under the
SSA’s Enumeration at Birth program. See Biden, 600 U.S. 489–90. State agencies
transmit birth data to the SSA to facilitate the assignment of SSNs, in exchange for
$4–5 per SSN from the SSA. If the SSA no longer issued SSNs to children subject
to the Executive Order, the States expect losses of $7,320–$38,129 per year.
Defendants argue these alleged losses are “incidental downstream economic
effects” that are too indirect to confer standing. Defendants rely on United States v.
Texas, 599 U.S. 670, 674 (2023), wherein the Supreme Court stated in a footnote
that when a state asserts that federal law or policy has only generated indirect effects
on state revenues or state spending, “the State’s claim for standing can become more
attenuated.” Id. at 680 n.3. Defendants also cite Washington v. FDA, 108 F.4th
1163, 1175–76 (9th Cir. 2024), in which we held that a state did not have standing
to challenge the FDA’s elimination of its in-person dispensing requirement for
mifepristone, because the state’s claimed increase in Medicaid costs was too
indirect.
We conclude that the States have shown that the loss of reimbursements,
funding, and additional expenses incurred by the development of a new system to
determine eligibility are concrete and imminent injuries-in-fact, traceable to the
Executive Order, and redressable by an injunction. We agree with the district court
that the automatic and direct effect of denying citizenship to children affected by the
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Executive Order renders them ineligible for federal programs and for Social Security
Numbers, which results in a quantifiable loss of funding to the States. Nothing about
this pecuniary injury is speculative given that it is “certainly impending.” See
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). These losses are not an
“indirect” effect on state spending that relies on a chain of causation with multiple
links, or assumptions about the effects of medication, or the unpredictable actions of
third parties. Cf. Texas, 599 U.S. at 680 n.3; Washington, 108 F.4th at 1175–76.
Instead, as in Biden v. Nebraska, the direct effect of the challenged federal action is
to decrease the number of people for which the state will receive federal funding and
“administrative fees.” 600 U.S. at 477, 489.
Defendants’ contentions to the contrary are not persuasive. They suggest that
any economic losses would be “self-inflicted,” because the State need not provide
social services to an individual who is ineligible under the federal program unless
they so choose. However, it was not a voluntary choice by the States for the federal
government to stop paying for these services, or to assume the costs that follow. See
Dep’t of Com., 588 U.S. at 767 (finding that losing “out on federal funds that are
distributed on the basis of state population” was a “sufficiently concrete and
imminent injury to satisfy Article III”). And the Supreme Court in Biden v.
Nebraska found that Missouri had alleged standing, even though its financial injury
stemmed from its choice to service federal loans. See 600 U.S. 489–490.
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Defendants also claim that the Executive Order does not require any changes to State
systems and does not “impose any penalty for failing to make them.” Although the
Executive Order does not on its face impose a duty on the States to change their
methods of determining federal eligibility, the States would nonetheless be required
to make these changes to comply with other federal laws. See, e.g., 42 U.S.C. §
1396b(v); 8 U.S.C. §§ 1611(a)(c)(1)(B); 42 C.F.R. § 435.406.
Defendants also argue that, even assuming that the States satisfy Article III,
recognizing standing here would violate the prohibition on parens patriae standing.
A “[s]tate does not have standing as parens patriae to bring an action against the
Federal Government.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458
U.S. 592, 61 n.16 (1982). To be sure, the Supreme Court has denied states’ attempts
to assert third-party standing as “thinly veiled attempt[s] to circumvent the limits on
parens patriae standing.” Haaland v. Brackeen, 599 U.S. 255, 295 n.11 (2023)
(stating that Texas claimed third-party standing “on behalf of non-Indian families.”);
see also Murthy v. Missouri, 603 U.S. 43, 76 (2024).
But the States here are not asserting standing based on the rights of their
citizens; instead, they assert injuries to their own pocketbooks that will be caused by
enforcement of the Executive Order. Unlike in Brackeen and Murthy, the asserted
pocketbook injuries are concrete, particularized, and traceable. Cf. Brackeen, 599
U.S. at 295–96 (“[T]hese alleged costs are not ‘fairly traceable’ to the placement
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preferences, which ‘operate independently’ of the provisions Texas identifies.”);
Murthy, 603 U.S. at 75 (“The States have not identified any specific speakers or
topics that they have been unable to hear or follow.”).
Finally, Defendants contend that third-party standing limitations also bar
standing for State plaintiffs. Prudential limitations on federal court jurisdiction
dictate that: (1) a party must assert his or her own legal rights and interests, not those
of others; (2) the courts will not adjudicate “generalized grievances” (i.e. “abstract
questions of wide public significance”); and (3) a party’s claims must fall within
“the zone of interests to be protected or regulated by the statute or constitutional
guarantee in question.” See Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 474–75 (1982) (citations omitted);
see also Warth v. Seldin, 422 U.S. 490, 499 (1975) (a plaintiff “must assert his own
legal rights and interests”); Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (noting
that a constitutional claim should be brought by the person “at whom the
constitutional protection is aimed”). However, “[the Supreme Court] has allowed
standing to litigate the rights of third parties when enforcement of the challenged
restriction against the litigant would result indirectly in the violation of third parties’
rights.” Warth, 422 U.S. at 510.
We conclude that third-party standing limitations do not bar this action. The
Executive Order operates directly as to the States by preventing the States from
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receiving funding and administrative fees that they would otherwise receive. In
addition, the Executive Order prohibits departments and agencies of the United
States from accepting documents issued by State governments purporting to
recognize United States citizenship for persons subject to the Executive Order. See
90 Fed. Reg. 8449. As a result, if the Executive Order is upheld, States will have to
modify their methods of determining United States citizenship and eligibility for
federal programs. The enforcement of the challenged government action against the
States thus results in the violation of third parties’ rights. See Warth, 422 U.S. at
510. We conclude that the States have standing to challenge the Executive Order as
violative of the Fourteenth Amendment’s Citizenship Clause.
B. INDIVIDUAL PLAINTIFFS
We decline to exercise our jurisdiction with respect to the Individual
Plaintiffs’ action and dismiss their claims. At the time that this lawsuit was filed,
the Individual Plaintiffs were a group of pregnant women who are noncitizens with
pending applications for asylum, representing a putative class of pregnant persons
and future children residing in Washington State. Defendants do not dispute their
standing. Individual Plaintiffs allege that their children would be denied citizenship
as a result of the Executive Order taking effect, and that that denial of citizenship
would cause loss to them of various federal benefits. We agree with the district court
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that a denial of citizenship is a concrete and imminent injury-in-fact, traceable to the
Executive Order, and redressable by an injunction.
However, one of the Individual Plaintiffs has since given birth while the
Executive Order is enjoined, meaning that her child is now a citizen, while the other
Individual Plaintiff was due to give birth earlier this month. Because Defendants
claim that the Executive Order does not have retroactive effect, if both Individuals
have given birth before this opinion is published, there may be a question of
mootness as to the Individuals’ claims. Typically, if a district court certifies a class
before the class representative’s claim becomes moot, “mooting the putative class
representative’s claim will not moot the class action.” Pitts v. Terrible Herbst, Inc.,
653 F.3d 1081, 1090 (9th Cir. 2011). “But where, as here, the plaintiff's claim
becomes moot before the district court certifies the class, the class action normally
also becomes moot.” Slayman v. FedEx Ground Package Sys., 765 F.3d 1033, 1048
(9th Cir. 2014). Because the district court below did not certify the class, there
remains a question as to whether Individual Plaintiffs’ claims are moot, or whether
an exception to mootness applies. We decline to address that question, because we
determine that to the extent the Individual Plaintiffs have live claims, those claims
are covered by the class action certified by the district court of New Hampshire in
Barbara, and dismissal of the Individual Plaintiffs is proper on those grounds. “A
court may choose not to exercise its jurisdiction when another court having
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jurisdiction over the same matter has entertained it and can achieve the same result.”
Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979).
The district court of New Hampshire certified a class that includes:
All current and future persons who are born on or after February 20, 2025,
where (1) that person's mother was unlawfully present in the United States
and the person's father was not a United States citizen or lawful permanent
resident at the time of said person's birth, or (2) that person's mother's
presence in the United States was lawful but temporary, and the person's
father was not a United States citizen or lawful permanent resident at the
time of said person's birth.
Barbara, 2025 WL 1904338, at *16. Individual Plaintiffs’ children undoubtedly are
encompassed by that class definition. Individual Plaintiffs’ claimed injuries on
appeal relate to the harm faced by their children: the prospect of removal and
separation from their families, the exclusion from legal immigration status if not
removed, the denial of lawful employment and educational opportunities, and the
deprivation of both constitutional and statutory rights. Moreover, both the class
certified in Barbara and the Individual Plaintiffs here seek an injunction of the
Executive Order on the basis that it violates the Fourteenth Amendment and the INA.
See id. at *1. There is no reason to believe that these claims will not be “fully and
vigorously litigated” by the Barbara class representatives. See Crawford, 599 F.2d
at 893. Because Individual Plaintiffs’ children can obtain relief for those injuries
through the class certified by the District Court of New Hampshire, and because
relief in this court may conflict with or circumscribe the flexibility of relief in that
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other case, we decline to exercise our jurisdiction over the Individual Plaintiffs’
claims and proceed only with the State Plaintiffs’ claims.
IV. PRELIMINARY INJUNCTION
A party is only entitled to a preliminary injunction if the party demonstrates
“[1] that [it] is likely to succeed on the merits; [2] that [it] is likely to suffer an
irreparable harm in the absence of preliminary relief; [3] that the balance of equities
tips in [its] favor, and [4] that an injunction is in the public interest.” Winter v.
NRDC, 555 U.S. 7, 20 (2008). “Likelihood of success on the merits is ‘the most
important’ factor; if a movant fails to meet this ‘threshold inquiry,’ we need not
consider the other factors.” California v. Azar, 911 F.3d 558, 575 (2018) (quoting
Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citation
omitted)). We first consider whether the plaintiffs are likely to succeed on the merits
of their claims. Upon determining that they are likely to succeed, we then proceed
to consider the remaining prongs of the Winter test.
A. MERITS
Plaintiffs contend that the Executive Order violates the Fourteenth
Amendment’s Citizenship Clause. They also contend that the Executive Order
violates the INA, 8 U.S.C. § 1401. We first address whether the Executive Order
violates the Citizenship Clause.
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1. Fourteenth Amendment
The text of the Fourteenth Amendment’s Citizenship Clause explicitly reads:
“All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State in which they reside.” U.S.
Const. amend. XIV, § 1, cl. 1. The parties dispute the meaning of “subject to the
jurisdiction thereof.”
Plaintiffs contend that the phrase “subject to jurisdiction thereof” means
“subject to United States authority and laws,” and exempts a small and well-defined
group of people who are born in United States territory yet not subject to United
States authority. Because the Executive Order attempts to exempt from citizenship
persons who are both born in the United States and subject to United States authority,
Plaintiffs contend that it violates the Citizenship Clause.
Defendants, in contending that the Executive Order is constitutional, advance
a novel interpretation of the phrase “subject to the jurisdiction thereof.” They first
contend that “jurisdiction” as used in the Citizenship Clause does not refer to
“regulatory jurisdiction,” i.e., jurisdiction as defined by a government’s authority
and lawmaking power, but instead refers to “political jurisdiction,” which they
define as “a concept rooted in allegiance and protection.” By their definition, persons
are only subject to the political jurisdiction of the United States if they “owe primary
allegiance to the United States,” excluding “those persons [who] owe allegiance to
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a different sovereign.” They then contend that a person only owes such allegiance
to the country in which the person is permanently domiciled, and the domicile of a
child follows the domicile of the parent. They assert that because individuals present
temporarily or unlawfully in the United States cannot establish permanent domicile,
their children born on United States soil do not owe allegiance to the United States
and are not subject to its political jurisdiction.
a. Ordinary Meaning
We conclude that the text of the Fourteenth Amendment supports the
Plaintiffs’ interpretation. In interpreting the text of the Constitution, courts are
“guided by the principle that ‘[t]he Constitution was written to be understood by the
voters; its words and phrases were used in their normal and ordinary as distinguished
from technical meaning.’” District of Columbia v. Heller, 544 U.S. 570, 576 (2008)
(quoting United States v. Sprague, 282 U.S. 716, 731 (1931)). When the Fourteenth
Amendment was adopted, as it is today, “jurisdiction” was commonly used in
reference to the power of the courts, defined as “[t]he legal power or authority of
hearing and determining causes.” Noah Webster, An American Dictionary of the
English Language 732 (1865). But in reference to nations, “jurisdiction” was also
defined as the “[p]ower of governing or legislating; the right of making or enforcing
laws; the power or right of exercising authority;” and the “limit within which power
may be exercised,” or “extent of power or authority.” Id; see also Benjamin
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Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English
Jurisprudence 671 (1879) (defining jurisdiction as “[t]he authority of government;
the sway of a sovereign power.”). This ordinary meaning of jurisdiction is consistent
with Plaintiffs’ interpretation of “subject to the jurisdiction thereof” as subject to the
laws and authority of the United States.
Defendants point to no contrary dictionary definitions that define jurisdiction
in terms of allegiance and protection. Indeed, they make no arguments about the
ordinary meaning of the Citizenship Clause at all. Defendants’ only argument based
on the text of the Citizenship Clause is that “subject to the jurisdiction” cannot
simply refer to “regulatory jurisdiction,” because that definition would render the
Citizenship Clause’s requirement of jurisdiction surplusage. They claim that the
United States has “exclusive and absolute” regulatory jurisdiction within its
territory, so that all children born in the United States are subject to its jurisdiction.
Id. They further contend that that definition does not explain why certain groups,
such as Native Americans and children of diplomats, were excluded from
citizenship.
Supreme Court precedent makes clear that reading “subject to the jurisdiction
thereof” to mean “subject to United States authority and laws” is not redundant. In
Wong Kim Ark, the Supreme Court directly addressed the meaning of the phrase
“subject to the jurisdiction thereof.” 169 U.S. 649. The Court stated that “[t]he real
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object of” the dual requirements of birth in U.S. territory and being subject to United
States jurisdiction was, “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 . . . had been recognized exceptions to the fundamental
rule of citizenship by birth within the country.” Id. at 682.
The Court in Wong Kim Ark held that these “classes of cases” are not fully
subject to United States authority and laws, despite Defendants’ contentions to the
contrary. The Court, relying on Chief Justice Marshall’s opinion in Schooner
Exchange, said that while “[t]he jurisdiction of the nation within its own territory is
necessarily exclusive and absolute,” there are certain cases “in which every
sovereign is understood to waive the exercise of a part of that complete exclusive
territorial jurisdiction.” Id. at 683–684 (quoting Schooner Exch. v. McFaddon, 11
U.S. 116, 136 (1812)). When a hostile foreign power occupies United States
territory, the Court said that “[t]he sovereignty of the United States over the territory
[is], of course, suspended, and the laws of the United States could no longer be
rightfully enforced there[.]” Id. at 683 (quoting United States v. Rice, 17 U.S. 246,
254 (1819)) (emphasis added). With respect to the immunity of foreign ministers
from United States jurisdiction, “the immunity itself is granted by the governing
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power of the nation to which the minister is deputed.” Id. at 685 (quoting Schooner
Exch., 11 U.S. at 138).
The Court contrasted these two groups with private individuals, who it stated
cannot be exempt from the jurisdiction of the country that they are in, because,
When private individuals of one nation spread themselves through another as
business or caprice may direct . . . 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 (quoting Schooner Exch, 11 U.S. at 144) (emphasis added). The
Court’s primary concern, in distinguishing private individuals from the exempted
groups, was whether they were subject to the laws and enforcement power of the
United States. Because the Court in Wong Kim Ark reasoned that the words “subject
to the jurisdiction thereof” must be understood “in the same sense in which the like
words had been used by Chief Justice Marshall in the well known case of The
Exchange,” the Court must have understood the phrase to refer to the United States’s
ability to fully subject an individual to its laws. See id. at 687.
The Court in Elk v. Wilkins similarly exempted members of Indian tribes from
citizenship because they were not subject to the full regulatory authority of the
United States.2 112 U.S. 94 (1884). While the United States could deal with the
2
Congress later expanded citizenship to Native American children via statute. See
8 U.S.C. § 1401(b) (1924).
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Tribes “either through treaties made by the President and Senate, or through acts of
Congress in the ordinary forms of legislation,” the Court in Elk recognized that,
“[g]eneral acts of Congress did not apply to Indians, unless so expressed as to clearly
manifest an intention to include them.” Id. at 100–01. This statement reflects the
unique position of the Tribes, which have sovereignty and are not subject to the full
regulatory jurisdiction of the United States. See, e.g., Haaland v. Brackeen, 599
U.S. 255, 310–313 (2023) (Gorsuch, J., concurring) (explaining that the Tribes have
inherent sovereignty and are free from state jurisdiction and control).
Accordingly, the Court in Elk said that members of Tribes were no more
subject to the jurisdiction of the United States “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.” 112 U.S. at 102. Regardless, the Court in Wong Kim Ark also held clearly
that “[t]he decision in Elk v. Wilkins concerned only members of the Indian tribes
within the United States, and had no tendency to deny citizenship to children born
in the United States of foreign parents of Caucasian, African, or Mongolian descent,
not-in the diplomatic service of a foreign country.” 169 U.S. at 682. Because the
Supreme Court has made clear that children of diplomats, children of invading
armies, and children of tribal members were understood not to be fully subject to
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United States authority and laws, interpreting jurisdiction in accordance with its
ordinary meaning is not redundant.
b. Supreme Court Precedent
The argument that Supreme Court precedent supports Defendants’ reading is
similarly unavailing. First, Defendants’ claimed distinction between political
jurisdiction and regulatory jurisdiction is not supported by precedent. Both the
Supreme Court and our Court have used “political jurisdiction” to refer merely to
the United States’ lawmaking authority. See, e.g., Smith v. Turner, 48 U.S. 283, 422
(1849) (describing taxation as part of political jurisdiction); Chicago, R.I. & P. Ry.
Co. v. McGlinn, 114 U.S. 542, 546 (1885) (describing political jurisdiction as
involved in legislative power); Lake v. Ohana Mil. Cmtys., LLC, 14 F.4th 993, 1000–
01 (9th Cir. 2021) (equating political jurisdiction with “legislative . . . jurisdiction”).
Second, the Court did not hold or even hint that there was a requirement of
“primary allegiance” or exclusive allegiance in either Elk or Wong Kim Ark. To the
contrary, the Wong Kim Ark Court repeatedly equated allegiance merely with
obedience to the laws of the sovereign, saying that “[a]llegiance is nothing more than
the tie or duty of obedience of a subject to the sovereign under whose protection he
is . . . .” See, e.g., id. at 659–661 (quoting Inglis v. Sailors’ Snug Harbor, 28 U.S.
99, 155 (1830)). Under English common law, “[s]uch allegiance and protection
were mutual . . . and were not restricted to natural-born subjects and naturalized
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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.” Id. at 655. Rather than
describe this allegiance as primary or exclusive, the Court characterized the
allegiance owed by foreign “individuals and merchants” as “temporary and local”
which was necessary to avoid “subjecting the laws to continual infraction.” Id. at
685 (quoting Schooner Exch, 11 U.S. at 144). The context of the opinion makes
clear that the Court did not view allegiance as a separate and unspoken requirement
of jurisdiction. Instead, it considered allegiance to be part and parcel of what
Defendants now label “regulatory” jurisdiction.
Third, the proposed requirement of “permanent domicile” in order to establish
political jurisdiction also finds no basis in the text of the Citizenship Clause or its
interpreting precedent. The Wong Kim Ark Court uses the phrase “permanent” only
in connection with domicile once, stating that although Wong Kim Ark’s parents left
the United States in 1890, they “were at the time of his birth domiciled residents of
the United States, having previously established and still enjoying a permanent
domicil[e] and residence therein at San Francisco.” Id. at 652. This statement
reflects the stipulated facts of the case, and the Court did not mention “permanent”
domicile in its interpretation of the Citizenship Clause. See id. at 652 (“The facts of
this case, as agreed by the parties are as follows . . . .”).
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In its analysis, the Court said, “[e]very 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. But the Court
immediately continued:
It can hardly be denied that an alien is completely subject to the political
jurisdiction of the country in which he resides—seeing that, as said by Mr.
Webster, when Secretary of State, in his Report to the President on Thrasher’s
Case in 1851, and since repeated by this court, “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,
unless his case is varied by some treaty stipulations.”
Id. at 693–94 (quoting 6 Daniel Webster, The Works of Daniel Webster 526 (1851)
(emphasis added)). It is clear from this quoted passage both that domicile did not
play a significant role in the Court’s analysis of the Citizenship Clause’s
requirements, and that the Court viewed political jurisdiction as equivalent to
obedience to the laws.
The text and ordinary meaning of the Citizenship Clause, as well as Supreme
Court precedent interpreting the Citizenship Clause, support the Plaintiffs’
interpretation that “subject to the jurisdiction thereof” means “subject to the laws
and authority of the United States.” By contrast, Defendants give no analysis of the
ordinary meaning of the Citizenship Clause to support their contention that
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jurisdiction requires primary allegiance and permanent domicile, and the textual
links they offer based on the Supreme Court precedent cited above are unavailing.
c. Historical Background
We conclude that the historical background of the Fourteenth Amendment
also supports Plaintiffs’ interpretation. We look to the historical background of
Constitutional Amendments when they codify preexisting rights. See Heller, 554
U.S. at 592. Although the Fourteenth Amendment extended the right of citizenship
regardless of race, the Supreme Court concluded that it reaffirmed “the fundamental
principle of citizenship by birth within the dominion.” See Wong Kim Ark, 169 U.S.
at 675; see also id. at 688 (stating that the Fourteenth Amendment’s Citizenship
Clause is “declaratory of existing rights, and affirmative of existing law” and
“intended to allay doubts and to settle controversies which had arisen, and not to
impose any new restrictions upon citizenship”).
Birthright citizenship is derived from the English common law principle of
jus soli, or citizenship determined by birthplace. James C. Ho., Defining
“American” Birthright Citizenship and the Original Understanding of the 14th
Amendment, 9 Green Bag 367, 369 (2006); see also Wong Kim Ark, 169 U.S. at 655.
As the Court in Wong Kim Ark explained, all children born in England were
considered natural-born subjects, whether they were born by subjects or born by
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those who had taken an oath of allegiance, or whether they were born by non-
subjects within the kingdom. Id.
Before the Fourteenth Amendment was adopted in 1868, the prevailing view
was that the United States adopted this idea of citizenship by birth within the
territory. 3 See, e.g., id. at 658; Lynch v. Clarke, 1 Sand. Ch. 583, 663 (N.Y. Ch.
1844) (“It is impossible to hold that there has been any relaxation from the common
law rule of citizenship by means of birth within our territory.”); Gardner v. Ward, 2
Mass. (1 Tyng) 244 (1805) (“I take it, then, to be established, with a few exceptions
not requiring our present notice, that a man, born within the jurisdiction of the
common law, is a citizen of the country wherein he is born.”); State v. Manuel, 20
N.C. (3 & 4 Dev. & Bat.) 144, 151 (1838) (“[A]ll free persons born within the State
are born citizens of the State.”); Munro v. Merchant, 28 N.Y. 9, 40 (1863) (assuming
that plaintiff “born in this state of non-resident alien parents . . . is prima facie a
citizen”); see also Michael D. Ramsey, Originalism and Birthright Citizenship, 109
Geo. L.J. 405, 410–12 (2020).
3
Enslaved individuals were often “ignored by the common law analysis,” see
Legis. Denying Citizenship at Birth to Certain Children Born in the United States,
19 Op. O.L.C. 340, 342 n.7 (1995), and the citizenship of free black people before
the Civil War was disputed and often determined in part by state law. See Martha
S. Jones, Birthright Citizen: A History of Race and Rights in Antebellum America
25–34 (2018).
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To contend that historical background supports their understanding that jus
soli citizenship required primary allegiance, Defendants rely heavily on the
international law treatises of Emmerich de Vattel, an 18th-century Swiss jurist. But
Vattel’s views on citizenship are plainly inconsistent with United States law and do
not support Defendants’ argument. In Vattel’s view, children of foreign permanent
residents born within the territory were not full citizens, which is inconsistent with
the American conception of birthright citizenship even under Defendants’
interpretation. See Emmerich de Vattel, The Law of Nations §§ 213, 214, at 102
(saying that foreigners who are permitted to stay in a country are “a kind of citizens
of an inferior order, and are united to the society without participating in all of its
advantages,” and because children “follow the condition of their fathers,” the
children of permanent residents would not be full citizens) (emphasis added). Vattel
recognized that his accounting of citizenship was not the case for all nations, noting,
“there are states, as, for instance, England, where the single circumstance of being
born in the country naturalizes the children of a foreigner.” Id. § 214, at 102.
Defendants also cite Justice Story’s view that a “reasonable qualification” to
birthright citizenship would be to exclude children of foreigners “abiding there for
temporary purposes.” Joseph Story, Commentaries on the Conflict of Laws, Foreign
and Domestic § 48 (1834). Although Justice Story may have thought this
qualification would be reasonable, he noted that “[i]t would be difficult, however, to
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assert, that in the present state of public law that such a qualification is universally
established.” Id. Accordingly, Defendants cite no compelling historical source
asserting that primary allegiance or permanent domicile were required at common
law. Instead, the common law understanding of jurisdiction within the sovereign’s
territory, and the recognized immunities from it, are more consistent with Plaintiffs’
interpretation of the Citizenship Clause.
d. Drafting History
“It is dubious to rely on [drafting] history to interpret a text that was widely
understood to codify a pre-existing right, rather than to fashion a new one.” Heller,
554 U.S. at 589–99, 603–04. But to the extent that drafting history is relevant here
to any degree, we conclude that the drafting history favors Plaintiffs’ interpretation.
When Senator Howard introduced the amendment, he said that the Citizenship
Clause “will not, of course, include persons born in the United States who are
foreigners, aliens, who belong to the families of ambassadors or foreign ministers
accredited to the Government of the United States, but will include every other class
of persons.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Although the
amendment was a subject of fierce debate, the Senators did not dispute its meaning
as it pertained to the children of foreigners. In fact, Senator Cowan criticized the
proposed amendment precisely because it would base citizenship on the “mere fact
that a man is born in the country.” Id. at 2890–91. He opposed the proposed
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amendment because it would grant birthright citizenship to the children of
noncitizens who he believed “owe [the United States] no allegiance [and] who
pretend to owe none.” Id. But even Senator Cowan acknowledged that like “a
sojourner,” such groups “ha[ve] a right to the protection of the laws.” Id. at 2890.
Senator Conness responded by arguing that given the small number of foreigners
and sojourners within the United States, Senator Cowan’s policy concern of granting
citizenship to these groups would not come to pass. Id. at 2891–92; id. at 2892
(stating that the amendment is a “simple declaration that a score or a few score of
human beings born in the United States shall be regarded as citizens of the United
States, entitled to civil rights, to the right of equal defense, to the right of equal
punishment for crime with other citizens”). Thus, the proponents of the amendment
did not contend that children of people who owe no allegiance to the United States
would not be granted citizenship but instead accepted this consequence. See id. at
2891 (“[C]hildren of all parentage whatever, born in California, should be regarded
and treated as citizens of the United States.”).
Defendants contend that Senator Trumbull, the drafter of the Civil Rights Bill,
equated “subject to the jurisdiction of the United States” with “owing allegiance
solely to the United States.” Id. at 2893–94. But he did so in the context of the
debate over tribal sovereignty, noting that Indian tribes “are not subject to our
jurisdiction in the sense of owing allegiance solely to the United States,” because
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“[i]t is only those persons who come completely within our jurisdiction, who are
subject to our laws, that we think of making citizens.” Id. at 2893–94 (emphasis
added). The Senators recognized that as “quasi foreign nations,” Indian tribes and
tribal members were distinct from other noncitizens. See id. at 2890, 2894–95
(remarks of Senator Howard). And any understanding that the Citizenship Clause
required allegiance was most definitely not universal. Senator Cowan opposed the
Citizenship Clause because it would extend birthright citizenship to children of
“people who . . . owe [my state] no allegiance.” Id. at 2891. Senator Trumbull
confirmed that the text covers all persons “who are subject to our laws.” Id. at 2893.
Defendants rely heavily on the Civil Rights Act of 1866 and its legislative
history to contend that “subject to the jurisdiction thereof” requires sole loyalty to
the United States. But in contrast, we conclude that the legislative history of the
Civil Rights Act is not persuasive here. “It is always perilous to derive the meaning
of an adopted provision from another provision deleted in the drafting process.”
Heller, 554 U.S. at 590.
The Civil Rights Act of 1866 was passed two years before the ratification of
the Fourteenth Amendment and conferred citizenship on “all persons born in the
United States, and not subject to any foreign power.” Civil Rights Act of 1866, § 1,
ch. 31, § 1, 14 Stat. 27, 27 (1866). This language, of course, is not the language that
was ultimately adopted in the text of the Fourteenth Amendment. Concluding that
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the Fourteenth Amendment affirms existing law and does not create new restrictions,
the Supreme Court in Wong Kim Ark noted, “any possible doubt . . . was removed
when the negative words of the Civil Rights Act, ‘not subject to any foreign power,’
gave way, in the Fourteenth Amendment of the Constitution, to the affirmative
words, ‘subject to the jurisdiction of the United States.’” 169 U.S. at 688. The
Framers of the Fourteenth Amendment decided not to use the language of the Civil
Rights Act of 1866, and “no act or omission of [C]ongress . . . can affect citizenship
acquired as a birthright, by virtue of the constitution itself, without aid of any
legislation.” Id. at 703. Stated another way, the language of Civil Rights Act of
1866 cannot modify the grant of birthright citizenship clearly and explicitly
conferred by the Fourteenth Amendment.
e. Public Understanding
Reinforcing our analysis above, we further conclude that the post-ratification
public understanding of the Fourteenth Amendment supports the Plaintiffs’
interpretation of the Citizenship Clause. “[T]he examination of a variety of legal
and other sources to determine the public understanding of a legal text in the period
after its enactment or ratification . . . is a critical tool of constitutional
interpretation.” Heller, 554 U.S. at 605.
As discussed extensively above, the Supreme Court’s interpretation of the
Citizenship Clause in Wong Kim Ark supports Plaintiffs’ interpretation, because the
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Supreme Court there repeatedly equated jurisdiction with being subject to the laws
of the United States. See supra Sections IV.A.1.a, IV.A.1.b. Supreme Court
decisions since then have repeatedly reaffirmed that all private noncitizens are
subject to the jurisdiction of the United States while within its territory. In Plyler v.
Doe, the Supreme Court held that, for the purposes of the Equal Protection Clause,
“[u]se of the phrase ‘within its jurisdiction’ . . . confirms[] the understanding that the
protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who
is subject to the laws of a State, and reaches into every corner of a State’s territory,”
so the Equal Protection Clause applies to undocumented immigrants. 457 U.S. 202,
215 (1982). Because the Court in Wong Kim Ark stated that persons who are within
the jurisdiction of a state for the purposes of the Equal Protection Clause must also
be “subject to the jurisdiction” of the nation, 169 U.S. at 696, it follows that Plyler’s
holding reaffirms that all persons subject to the laws of the states are subject to the
jurisdiction of the United States.
Further, after Wong Kim Ark was decided, the Supreme Court has repeatedly
recognized that the children of undocumented immigrants are citizens if born within
the territory of the United States. See United States ex rel. Hintopoulos v.
Shaughnessy, 353 U.S. 72, 73 (1957) (stating that a child born to two illegally
present noncitizens was “of course, an American citizen by birth.”); INS v. Errico,
385 U.S. 214, 215 (1966) (stating that the child of two noncitizen parents who
35 25-807
fraudulently entered the United States “acquired citizenship at birth”); INS v. Rios-
Pineda, 471 U.S. 444, 446 (1985) (recognizing as United States citizen the child of
two noncitizens who were unlawfully present in the country).
The overwhelming majority of Executive Branch practice also supports
Plaintiffs’ interpretation. In 1871, the Secretary of State wrote that the Fourteenth
Amendment was “simply an affirmance of the common law of England of this
country,” and “[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 extra territoriality.” 2 Francis
Wharton, A Digest of the International Law of the United States, Ch. 7, § 183, at
394. In 1873, the Secretary of State wrote to the President, “The child born of alien
parents in the United States is held to be a citizen thereof and to be subject to duties
with regard to this country which do not attach to the father.” Opinions of the
Principal Officers of the Executive Departments and Other Papers Relating to
Expatriation, Naturalization, and Change of Allegiance 18 (Gov’t Printing Office
1873). In 1947, the Board of Immigration Appeals (BIA) concluded that a man born
in the United States to Polish parents, who returned to Poland at age three and served
in the Polish army, was nevertheless a United States citizen. Matter of S----, 2 I&N
Dec. 908, 909 (BIA 1947). In 1978, the BIA held that a man born on then-United
States territory to Mexican parents was born “subject to the jurisdiction” of the
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United States, without regard for whether his parents intended or were permitted to
be domiciled in the United States and despite the fact that “[o]fficials . . . were not
aware that the [the land] was a part of the county,” and the United States did not
actually exercise its jurisdiction over the land. Matter of Cantu, 17 I&N Dec. 190,
193–98 (BIA 1978).
Perhaps most notably, in 1995 and 1997 the United States Department of
Justice Office of Legal Counsel (OLC) directly addressed the constitutionality of
legislation that would deny citizenship to children born to parents who were not
citizens or permanent residents. OLC reviewed the Citizenship Clause’s text,
history, and precedent, and concluded, for the same reasons we do today, that such
legislation would be “unquestionably” and “flatly” unconstitutional. Legis. Denying
Citizenship, 19 Op. O.L.C. at 341; Citizenship Reform Act of 1997 and Voter
Eligibility Verification Act: Hearing Before the Subcommittee on Immigration and
Claims of the House Committee on the Judiciary, 105th Cong., 1st Sess. 21 (June
25, 1997) (statement of Dawn E. Johnson, Acting Assistant Attorney General, Office
of Legal Counsel).
Defendants cite only a few post-ratification interpretations of the Fourteenth
Amendment that Defendants contend support their view. First, they cite a proposed
1874 bill that would have provided that “a child born within the United States of
parents who are not citizens and who do not reside within the United States . . . shall
37 25-807
not be regarded as a citizen thereof.” 2 Cong. Rec. 3279 (1874). The draft bill was
never enacted and represents only the view of a single member of a Congress. See
City & Cnty. of San Francisco v. USCIS, 944 F.3d 774, 797 (9th Cir. 2019) (stating
that legislative history of an unenacted bill is only probative “of the fact that
Congress chose not to codify [Defendants’] interpretation”).
As evidence of Executive Branch practice that they contend is consistent with
their interpretation of the Citizenship Clause, Defendants cite two passport denials
in 1885 and a Department of Justice report from 1910. But with respect to the
passport denials, both Secretaries of State relied on the assumption that a natural-
born United States citizen would lose birthright citizenship if their noncitizen parents
removed the child from the country while still a minor and the child did not reclaim
citizenship as an adult. See 2 Francis Wharton, A Digest of the International Law of
the United States, Ch. 7, § 183, at 397; id. at 399–400. The 1910 report presents a
different view, but the weight of the evidence is nevertheless in Plaintiffs’ favor.
Defendants even acknowledge the weight of the evidence, contending that the
Executive Order “address[es] the Executive Branch’s prior misinterpretation of the
Citizenship Clause.” But the fact that most Executive Branch interpretation is
contrary to Defendants’ interpretation is relevant evidence that Defendants’ novel
interpretation is incorrect. See Bankamerica Corp v. United States, 462 U.S. 122,
130 (1983).
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The plain text and ordinary meaning of the Fourteenth Amendment,
controlling precedent interpreting the Citizenship Clause, drafting history, and most
post-ratification public understanding weigh in favor of Plaintiffs’ interpretation of
the Citizenship Clause.4 For that reason, we conclude that Plaintiffs are likely to
succeed on the merits of their claim that the Executive Order violates the Citizenship
Clause by denying citizenship to children who are born in the United States and
“subject to the jurisdiction thereof.”
2. Immigration and Nationality Act
For the same reasons, Plaintiffs are likely to succeed on the merits of their
claim that the Executive Order violates the Immigration and Nationality Act (INA).
8 U.S.C. § 1401(a) provides that “a person born in the United States, and subject to
the jurisdiction thereof” is a citizen. Congress made clear when enacting this statute
that it was borrowing the statutory language from the Fourteenth Amendment. To
Revise and Codify the Nat’y Laws of the United States into a Comprehensive Nat’y
Code: Hearings Before the Comm. on Immig. and Naturalization on H.R. 6127
Superseded by H.R. 9980, 76th Cong., 1st Sess., 38 (1940). A statute adopting
language from another source generally conveys the original source’s well-settled
4
Defendants also advance policy arguments to support their interpretation of the
Constitution. “But as with most questions of law, the policy pros and cons are
beside the point.” CASA, 2025 WL 1773631, at *13. The Executive Branch
cannot “alter the [Constitution’s] text in order to satisfy [its] policy preferences.”
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002).
39 25-807
meaning. See, e.g., George v. McDonough, 596 U.S. 740, 746 (2022). And more
generally, a statute’s language is “interpret[ed] . . . in accord with the ordinary public
meaning of its terms at the time of its enactment.” Bostock v. Clayton County, 590
U.S. 644, 654 (2020). Because we conclude that the meaning of “subject to the
jurisdiction thereof” had been settled by the Supreme Court in Wong Kim Ark and
had been settled in public understanding at the time that the statute was enacted, see
supra Section IV.A.1, we likewise conclude that the Executive Order likely violates
the INA. Accordingly, Plaintiffs have shown a strong likelihood of success on the
merits both on their Constitutional Fourteenth Amendment claim and on their
statutory claim under the INA, satisfying the first prong [1] of the Winter
prerequisites to gain an injunction.
B. REMAINING PRELIMINARY INJUNCTION FACTORS
Plaintiffs must also show “[2] that [they are] likely to suffer an irreparable
harm in the absence of preliminary relief; [3] the balance of equities tips in [their]
favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at 20.
For the reasons that follow, we conclude that Plaintiffs have met their burden with
respect to the remaining factors.
1. Irreparable Harm
The irreparable harm analysis focuses on irreparability, “irrespective of the
magnitude of the injury.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir.
40 25-807
1999). The Plaintiff States urge a theory of economic harm. Economic harm is not
normally considered irreparable. L.A. Mem’l Coliseum Comm’n v. Nat’l Football
League, 634 F.2d 1197, 1202 (9th Cir. 1980). But we have held that economic harm
is irreparable when monetary damages are unavailable. Azar, 911 F.3d at 581; see
also City & Cnty. of San Francisco, 981 F.3d at 762.
The district court found that the State Plaintiffs are likely to suffer irreparable
economic injury, on the basis that they will be denied federal reimbursements for
medical care and social services provided to children no longer considered citizens
under the Executive Order and will incur substantial administrative costs associated
with complying with the Executive Order. We conclude that the district court did
not abuse its discretion.
Because Defendants are federal officials and federal agencies, money
damages are unavailable in this case. United States v. Testan, 424 U.S. 392, 400
(1976) (“In a suit against the United States, there cannot be a right to money damages
without a waiver of sovereign immunity. . . .”). Defendants nevertheless contend
that the costs incurred by the States could be “recovered through submission of
claims after final judgment or through the administrative procedures applicable to
those programs.” But Defendants do not explain how administrative procedures
would enable the States to receive reimbursements for the thousands of children who
will be declared ineligible for such reimbursements by the Executive Order. Nor do
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Defendants address the States’ well-supported contention that the States would incur
costs of developing new systems to determine which children born in their territory
are citizens and which children are not. See Ledbetter v. Baldwin, 479 U.S. 1309,
1310 (1986) (Powell, J., in chambers) (harm is irreparable when “[t]he State will
bear the administrative costs of changing its system to comply” and is unlikely to
recover those costs in litigation). Because the denial of reimbursements and
administrative costs are economic injuries for which monetary damages are not
available, we conclude that the State Plaintiffs’ injuries are irreparable. See Azar,
911 F.3d at 581.
2. Balance of the Equities and Public Interest
When the government is a party, the final two factors merge. See Drakes Bay
Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). We have held that
constitutional violations weigh heavily in favor of an injunction, because “all
citizens have a stake in upholding the Constitution.” Hernandez v. Sessions, 872
F.3d 976, 996 (9th Cir. 2017) (quoting Preminger v. Principi, 422 F.3d 815, 822
(9th Cir. 2005)). For that reason, “[a] plaintiff’s likelihood of success on the merits
of a constitutional claim also tips the merged third and fourth factors decisively in
his favor.” Baird v. Bonta, 81 F.4th 1036, 1042 (9th Cir. 2023). Further, the rule of
law is secured by a strong public interest that the laws “enacted by their
42 25-807
representatives are not imperiled by executive fiat.” E. Bay Sanctuary Covenant v.
Trump, 9 F.3d 742, 779 (9th Cir. 2018) (cleaned up).
The balance of the equities may in certain cases tip in the government’s favor
where an injunction poses a substantial administrative burden on the government
and would delay the deportation of deportable immigrants not eligible for relief. See
INS v. Legalization Assistance Project of the L.A. Cnty. Fed’n of Labor, 510 U.S.
1301, 1305–06 (1993) (O’Connor, J., in chambers). But the federal government
“cannot reasonably assert that it is harmed in any legally cognizable sense by being
enjoined from constitutional violations.” Zepeda v. INS, 753 F.2d 719, 722 (9th Cir.
1983).
We affirm the district court’s conclusion that the likely constitutional
violations here weigh in favor of an injunction and that Defendants have “no
legitimate interest in enforcing an Order that is likely unconstitutional and beyond
its authority.” Defendants in their briefing contend that because the challenged
Executive Order “is an integral part of President Trump’s broader effort to repair the
United States’ immigration system and to address the ongoing crisis at the southern
border,” the Executive Branch would be irreparably injured by the delay in
implementing its policies that the preliminary injunction may entail. But the
preliminary injunction in no way prevents the Executive Branch from addressing
unlawful immigration and does not infringe on the Executive Branch’s power to
43 25-807
ensure that the laws are faithfully executed. Cf. INS, 510 U.S. at 1305–06 (a stay
order by Justice O’Connor concluded that the district court’s order “would impose a
considerable administrative burden on the INS” and would delay the deportation of
deportable noncitizens). In sharp contrast to INS, the preliminary injunction here
merely prevents the Executive Branch from denying citizenship to individuals who
are likely constitutionally entitled to citizenship. Because, as the district court
correctly concluded, the Executive Branch does not have a legitimate interest in
violating the Constitution, the Executive Branch has not shown that either the public
interest or the balance of equities tips in its favor.
V. SCOPE OF THE INJUNCTION
The scope of a district court’s preliminary injunction, like the grant of the
preliminary injunction itself, is reviewed for abuse of discretion. See Hecox, 104
F.4th at 1073. “A district court has considerable discretion in fashioning suitable
relief and defining the terms of an injunction,” and “[a]ppellate review of those terms
‘is correspondingly narrow.’” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d
970, 974 (9th Cir. 1991) (quoting Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250,
1256 n.16 (9th Cir. 1982)). However, injunctive relief “must be tailored to remedy
the specific harm alleged,” and “[a]n overbroad injunction is an abuse of
discretion.” Id.
44 25-807
As the Supreme Court recently held, “federal courts lack authority to issue”
universal injunctions. CASA, 2025 WL 1773631, at *13 (June 27, 2025). However,
“[t]he equitable tradition has long embraced the rule that courts generally ‘may
administer complete relief between the parties.’” Id. at *11 (quoting Kinney-Coastal
Oil Co. v. Kieffer, 277 U.S. 488, 507 (1928)) (emphasis added in CASA). The
Supreme Court acknowledged that, “[t]he complete-relief inquiry is more
complicated for the state respondents,” and a universal injunction may be necessary
“to provide the States themselves with complete relief.” See id. at *12. The Supreme
Court declined to take up that argument, leaving it to the lower courts to “determine
whether a narrower injunction is appropriate.” Id.
The district court below concluded that a universal preliminary injunction is
necessary to provide the States with complete relief. We conclude that the district
court did not abuse its discretion in issuing a universal injunction in order to give the
States complete relief. States’ residents may give birth in a non-party state, and
individuals subject to the Executive Order from non-party states will inevitably
move to the States. See U.S. Census Bureau, U.S. Dep’t of Com., Geographical
Mobility in the Past Year by Age for Current Residence in the U.S., Am. Cmty.
Survey, ACS 1-Year Estimates Detailed Tables, Table B07001,
https://tinyurl.com/mpau42e9. To account for this, the States would need to
overhaul their eligibility-verification systems for Medicaid, CHIP, and Title IV-E.
45 25-807
For that reason, the States would suffer the same irreparable harms under a
geographically-limited injunction as they would without an injunction. See supra
Section III.A.
This is so even if, as Defendants suggest, Defendants were enjoined to treat
children affected by the Executive Order who move to the States as eligible for
federally funded medical and social programs. Defendants did not raise this
proposed narrower injunction below. On that basis alone, we conclude that the
district court did not abuse its discretion, because the district court was not obligated
to consider an argument that the Defendants never raised. See Wilkins v. United
States, 598 U.S. 152, 158 (2023).
But even if Defendants had raised this argument below, it fails. Enjoining
Defendants to deem these children eligible for Medicaid, CHIP, or Title IV-E
services would not remedy the States’ administrative harms. The States are required
by federal law to verify the actual citizenship status of individuals for the programs
that they operate. See, e.g., 42 U.S.C. § 1396b(v); 8 U.S.C. §§ 1611(a), (c)(1)(B);
42 C.F.R. § 435.406. Because the Executive Order provides that “no department or
agency of the United States government shall issue documents recognizing United
States citizenship, or accept documents . . . purporting to recognize United States
Citizenship,” the States would be unable to verify the citizenship of children through
their established systems. See Protecting the Meaning and Value of American
46 25-807
Citizenship, Exec. Order 14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). This is no
surprise as the States’ relevant regulations are based on the longstanding premise of
nationwide birthright citizenship, the status quo ante litem. See Boardman v. Pacific
Seafood Group, 822 F.3d 1011, 1024 (9th Cir. 2016) (noting that the “purpose of a
preliminary injunction is to preserve the status quo ante litem”). Thus, the States
would be obligated to overhaul their existing systems for determining citizenship
and incur an administrative burden even if the injunction were narrowed as
Defendants suggest. Again, these are costs that are not recoverable in damages. See
Testan, 424 U.S. at 400; Ledbetter, 479 U.S. at 1310. It is impossible to avoid this
harm absent a uniform application of the Citizenship Clause throughout the United
States. For that reason, we conclude that the district court did not abuse its discretion
in issuing a universal preliminary injunction, and we affirm the injunction’s scope.
VI. CONCLUSION
Article II of the Constitution establishes the scope of presidential powers. See
generally U.S. Const. art. II. The President has the power to issue executive orders
if they “stem either from an act of Congress or from the Constitution itself,” on
matters that fall within that scope established by Article II. Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). But one power that the President
was not granted, by Article II or by any other source, is the power to modify or
change any clause of the United States Constitution. Perhaps the Executive Branch,
47 25-807
recognizing that it could not change the Constitution, phrased its Executive Order in
terms of a strained and novel interpretation of the Constitution.5
The district court correctly concluded that the Executive Order’s proposed
interpretation, denying citizenship to many persons born in the United States, is
unconstitutional. We fully agree. The Defendants’ proposed interpretation of the
Citizenship Clause relies on a network of inferences that are unmoored from the
accepted legal principles of 1868. This runs the risk of “‘extrapolat[ing]’ from the
Constitution’s text and history ‘the values behind [that right], and then . . .
enforc[ing] its guarantees only to the extent they serve (in the courts’ views) those
underlying values.’” United States v. Rahimi, 602 U.S. 680, 710 (2024) (Gorsuch,
J., concurring) (quoting Giles v. California, 554 U.S. 353, 375 (2008)). We reject
this approach because it is contrary to the express language of the Citizenship
Clause, the reasoning of Wong Kim Ark, Executive Branch practice for the past 125
years, the legislative history to the extent that should be considered, and because it
is contrary to justice.
AFFIRMED
5
The Executive Order attempts to qualify and limit the plain language of the
Constitution’s citizenship clause, which by its terms only says that a person born in
the United States and subject to its jurisdiction is a citizen, by adding the notion
that the person must be a child of a citizen or lawful permanent resident. The
precise language of the Executive Order is set forth in the text above quoting
section 1 of the Executive Order. See supra Section I.B.
48 25-807
FILED
JUL 23 2025
State of Washington, et al. v. Trump, et al., No. 25-807
BUMATAY, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
For good reason, this case elicits strong reactions from all sides. Fewer
questions could be more important than deciding who is entitled to American
citizenship. And this is understandably so—citizenship in our country is worth
fighting for. And it’s also worth ensuring that it is only conferred on those legally
eligible to receive it. Despite, or perhaps because of, this, courts must be vigilant in
enforcing the limits of our jurisdiction and our power to order relief. Otherwise, we
risk entangling ourselves in contentious issues not properly before us and
overstepping our bounds. No matter how significant the question or how high the
stakes of the case—at all times, we must adhere to the confines of “the judicial
Power.” U.S. Const. art. III, § 2, cl. 1. Exceeding those limits—even to settle a
divisive issue—violates the Constitution.
Among the most profound innovations of our Constitution is our system of
separated powers—one that grants each branch of our government only limited
authority. The Founding generation understood this division was necessary to
preserve liberty and prevent tyranny. With their personal experience at the hands of
the British government—with its Star Chamber, arbitrary pronouncements, and other
abuses—they knew that concentrating too much authority in only a few hands
corrupts and threatens our freedoms. As a result, they established strict
constitutional guardrails to keep each branch in its lane.
1
A vital separation-of-powers limit on the judiciary is that we may only grant
party-specific relief. Under the constraints placed on lower courts by Congress, we
may order only the “sorts of equitable remedies traditionally accorded by courts of
equity at our country’s inception.” Trump v. CASA, Inc., 606 U.S. ___, 145 S. Ct.
2540, 2551 (2025) (simplified). For too long, this limit was ignored. All too often,
district courts have issued universal injunctions—mandating relief to both injured
plaintiffs and non-parties alike—as a matter of course. But, simply put, universal
injunctions “lack a historical pedigree” and “fall outside the bounds of a federal
court’s equitable authority under the Judiciary Act.” Id. at 2554. Indeed, runaway
universal injunctions conflict with the judicial role—encouraging federal courts to
“act more like a legislature by decreeing the rights and duties of people nationwide.”
United States v. Texas, 599 U.S. 670, 703 (2023) (Gorsuch, J., concurring). So the
Supreme Court has put an end to that practice.
To adhere to the separation of powers, then, federal courts must not grant an
injunction “broader than necessary to provide complete relief to each plaintiff with
standing to sue.” CASA, 145 S. Ct. at 2562–63. No longer can a single district court
judge casually enjoin the actions of the political branches everywhere against
everyone all at once. Now, plaintiffs must establish that a sweeping injunction is
truly necessary for “complete relief.” And that inquiry must be searching—requiring
the closest scrutiny to the plaintiff’s claimed injury. “[T]he broader and deeper the
2
remedy the plaintiff wants, the stronger the plaintiff’s story needs to be.” Id. at 2558
(quoting S. Bary & P. Miller, Getting into Equity, 97 Notre Dame L. Rev. 1763, 1797
(2022)). True, sometimes complete relief may incidentally benefit non-parties, as in
a public nuisance. See id. at 2557. But the key is that sweeping relief of that sort is
“by far the exception,” justified only when “it would be all but impossible to devise
relief that reaches only the plaintiffs.” Id. at 2565 (Thomas, J., concurring)
(simplified). Thus, we should approach any request for universal relief with good-
faith skepticism, mindful that the invocation of “complete relief” isn’t a backdoor to
universal injunctions. Otherwise, CASA would be a mere drafting exercise rather
than a binding precedent. And finally, it’s worth remembering that “complete relief”
functions not as a floor but as a ceiling—it’s not a “guarantee” but the “maximum a
court can provide.” Id. at 2558 (majority opinion). Equity sometimes demands that
courts grant less than complete relief.
Standing is another separation-of-powers mechanism to guard against judicial
overreach. Standing keeps courts in their place: deciding only concrete disputes
between an injured plaintiff and a defendant according to the law. Requiring an
injury in fact before exercising jurisdiction “prevent[s] the judicial process from
being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l.
USA, 568 U.S. 398, 408 (2013). Courts, then, can’t be used to strike down disfavored
laws on a whim. Instead, to invoke the judicial power, plaintiffs must establish actual
3
harm traceable to the law. Otherwise, we risk transforming the judiciary into the
“roving commission,” United States v. Hansen, 599 U.S. 762, 786 (2023) (Thomas,
J., concurring) (simplified), for the “free-floating review” of executive and
congressional action expressly rejected by the Founders, Moody v. NetChoice, LLC,
603 U.S. 707, 761 (2024) (Thomas, J., dissenting). The Founders left non-
particularized challenges to disfavored policy to the ballot box—not the courts.
And these two guardrails—party-specific relief and standing—must work in
tandem. We can’t tighten one but loosen the other. That would be like squeezing
one end of a balloon—it just pushes all the air to the other end. The net result is the
same—inflated power for the judiciary. So with our authority to issue universal
injunctions sharply curtailed, we must resist the temptation to expand our authority
by reflexively granting third-party standing, indulging speculative harms, or
allowing other jurisdictional end-runs. That concern is particularly acute in our
dealings with States because they are often “not directly subject to the challenged
policy” yet may seek wider-ranging redress than individual plaintiffs for “at most,
collateral injuries.” See CASA, 145 S. Ct. at 2566 (Alito, J., concurring). As
Justice Alito warned, lower courts must remain “conscientious[]” in applying third-
party standing doctrine, “including against state plaintiffs.” Id. Otherwise, we grant
States the power to “create a potentially significant loophole” evading the limits on
universal injunctions by artful pleading. Id. That’s why we must be “rigorous” in
4
our state-standing analysis if reaching the merits of the dispute would “force us to
decide whether an action taken by one of the other two branches of the Federal
Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819–20 (1997).
In these cases, courts should not intervene “unless obliged to do so in the proper
performance of our judicial function, when the question is raised by a party whose
interests entitle him to raise it.” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (quoting Blair v.
United States, 250 U.S. 273, 279 (1919)). The separation of powers demands no
less.
With these principles in mind, I return to this case. On January 20, 2025, the
President issued an Executive Order directing the federal government to no longer
recognize the U.S. citizenship of children born in the United States to parents on a
temporary visa or unlawfully present in the country. See Protecting the Meaning
and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449.
(Jan. 20, 2025). The States of Washington, Arizona, Illinois, and Oregon (“State
Plaintiffs”) immediately challenged the Executive Order. Cherly Norales Castillo
and Alicia Chavarria Lopez (“Individual Plaintiffs”) also sued on behalf of their
then-unborn children, who wouldn’t receive U.S. citizenship under the Executive
Order. On February 6, 2025, the district court enjoined the enforcement and
5
implementation of the Executive Order on a universal basis. The United States
appealed.
I join Section III.B of the majority opinion in declining to reach the Individual
Plaintiffs’ claims. As the majority observes, it appears that both Individual Plaintiffs
have given birth, meaning their children are United States citizens—raising
mootness concerns. It’s also a good call to avoid potential conflict with the
overlapping class action pending in the District of New Hampshire. See Church of
Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 750 (9th Cir. 1979).
But in rigorously applying our standing doctrine, I conclude that State
Plaintiffs have no standing at this time. Absent a party with Article III standing, it’s
premature to address the merits of the citizenship question or the scope of the
injunction.
I respectfully dissent in part.
I.
State Plaintiffs Lack Standing
The federal government asserts that the State Plaintiffs lack standing to
challenge the Executive Order. In response, State Plaintiffs claim standing to protect
their sovereign and pecuniary interests. Neither ground establishes standing. First,
State Plaintiffs haven’t identified a cognizable sovereign interest, and they can’t sue
the federal government on behalf of their citizens. Second, State Plaintiffs’ asserted
6
pecuniary injuries are too speculative and contingent at this stage to constitute
injuries in fact. Third, State Plaintiffs’ alleged loss of federal reimbursements for
public benefits is a self-inflicted injury that doesn’t confer standing. Finally, Biden
v. Nebraska, 600 U.S. 477 (2023), doesn’t provide standing.
A.
No Sovereign or Third-Party Standing
State Plaintiffs first argue standing to bring this challenge based on their
“sovereign interests” or their ability to litigate constitutional claims that implicate
their residents’ individual rights.
State Plaintiffs’ first theory of standing is easy to dismiss. They assert a
“sovereign interest” in defending against regulation of “state citizenship.” Even if
such an interest exists, State Plaintiffs haven’t shown how the Executive Order
regulates state citizenship in any way. See Massachusetts v. Mellon, 262 U.S. 447,
482 (1923) (observing that States’ “sovereign rights” are not implicated if the federal
government does not “require the states to do or to yield anything”). By its express
terms, the Order only implicates the meaning of United States citizenship and only
directs action by federal executive agencies. And State Plaintiffs point to no
language in the Order that implicitly alters state citizenship. At most, they suggest
that deeming some of their residents not “subject to the jurisdiction” of the United
States might confer on those residents “some degree of immunity from state laws.”
7
Absolutely nothing in the Executive Order says that, nor has any party advanced that
view. So, while creative, this alleged injury is neither concrete nor imminent. This
theory easily fails.
State Plaintiffs’ next theory of standing seeks to vindicate the rights of their
citizens. Altering who is a United States citizen, they assert, might affect their
residents’ ability to vote in local elections, serve on juries, hold local office, and
become police officers. They also argue that they can challenge the Order based on
a “long history” of state and local government challenges to Executive Branch action
impacting individual rights. Try as they may to disclaim it, distilled down, these
arguments are no more than an assertion of third-party standing on behalf of their
citizens—also known as parens patriae. And it’s blackletter law that “[a] State does
not have standing as parens patriae to bring an action against the Federal
Government.” Haaland v. Brackeen, 599 U.S. 255, 295 (2023) (simplified). That
makes “th[is] issue open and shut.” Id.
Standing doctrine “strongly disfavors so‑called ‘third‑party standing.’”
William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev.
153, 157 (2023). Generally, a party “must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or interests of third parties.”
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (simplified). The risks of relaxing
third-party standing are obvious: “the courts might be ‘called upon to decide abstract
8
questions of wide public significance even though other governmental institutions
may be more competent to address the questions and even though judicial
intervention may be unnecessary to protect individual rights.’” Id. (simplified).
Given large state populations and the broad interests they may seek to
vindicate, these concerns apply with greater force when States assert third-party
standing. Just as federal courts are not “roving commissions assigned to pass
judgment on the validity of the Nation’s laws,” Hansen, 599 U.S. at 786 (Thomas,
J., concurring) (simplified), neither are States anointed privileged litigants to
challenge disfavored federal government action. Like other parties, States must
show a cognizable harm to themselves—not just their residents—before invoking
federal court jurisdiction to challenge federal government policy. As the Court
recognized long ago, “[w]hile the state, under some circumstances, may sue [as
representatives of its citizens] for the protection of its citizens . . . it is no part of its
duty or power to enforce their rights in respect of their relations with the federal
government.” Mellon, 262 U.S. at 485–86. That’s because “it is the United States,
and not the state, which represents them as parens patriae.” Id. at 486.
Indeed, in our constitutional system, the People are sovereign and do not need
States to act as intermediaries. See Ann Woolhandler & Michael G. Collins, State
Standing, 81 Va. L. Rev. 387, 439 (1995) (arguing that the traditional “preference
for state-versus-individual actions over government-versus-government actions
9
enhanced the status of the individual as a rights-holder against government”);
Kowalski, 543 U.S. at 130 (considering “whether there is a ‘hindrance’ to the
possessor’s ability to protect his own interests” when deciding whether to allow
third-party standing). After all, the common law basis for parens patriae was the
need to protect those who could not protect themselves. See Alfred L. Snapp & Son,
Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600 (1982) (The royal prerogative
serves to protect those who “are legally unable, on account of mental incapacity,
whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of
themselves and their property.”) (quoting � J. Chitty, Prerogatives of the Crown 155
(1820)); 3 William Blackstone, Commentaries 47 (The King “is the general guardian
of all infants, idiots, and lunatics.”). Because our constitutional system enables
individuals to vindicate their own rights, courts should disfavor state third-party
standing.
The Supreme Court has a long history of upholding this principle. In South
Carolina v. Katzenbach, 383 U.S. 301 (1966), the Court held that South Carolina
lacked standing to challenge a federal statute that the State alleged violated its
citizens’ due-process rights. Because the State itself had no due process rights, it
could not raise its citizens’ rights “against the Federal Government, the ultimate
parens patriae of every American citizen.” Id. at 324. Next, in Brackeen, 599 U.S.
255, the Supreme Court held that Texas did not have standing to argue that a federal
10
statute violated its citizens’ equal-protection rights. Again, the Court held that a
State could not “assert third-party standing” to bring a suit when the State itself
“ha[d] no equal protection rights of its own.” Id. at 294, 295 n.11. And most
recently, in Murthy v. Missouri, 603 U.S. 43, 76 (2024), the Court held that Missouri
lacked standing to bring First Amendment claims against alleged federal government
censorship of its citizens on behalf of its citizens.
So State Plaintiffs’ assertion of standing to protect their residents collides with
third-party standing limitations. Though they couch it otherwise, we can’t ignore
“thinly veiled attempt[s] to circumvent the limits on parens patriae standing.”
Brackeen, 599 U.S. at 295 n.11. At bottom, State Plaintiffs’ concerns are their
residents’ rights and relationships with the federal government. But as the numerous
suits filed by individual plaintiffs nationwide against the Executive Order show,
individuals are themselves capable of remedying any alleged injury. Given this, we
must deny third-party standing for State Plaintiffs.
B.
Pecuniary Injuries Too Speculative and Contingent
State Plaintiffs next assert an array of pecuniary harms to their fiscs. First,
they claim that the Executive Order will reduce their share of federal reimbursements
from Medicaid, Children’s Health Insurance Program (“CHIP”), and Title IV-E
foster care services. Because only services provided to those with U.S. citizenship
11
or certain legal immigration statuses are eligible for reimbursement under these
federal programs, State Plaintiffs allege that they will not receive reimbursements
for services provided to children born to undocumented aliens or aliens with
temporary visas. Second, the States maintain that they will incur administrative
expenses to redesign their public assistance programs and retrain their staff to verify
citizenship under the Executive Order. If citizenship is no longer determined by
birth in the United States, State Plaintiffs surmise that they will need to design new
citizen-verification protocols, update their IT infrastructure, and instruct staff to
ensure compliance with federal assistance programs. Finally, the States contend that
they will lose processing fees from the Social Security Administration (“SSA”) for
transmitting birth-record data on U.S. citizens. Currently, the SSA pays State
Plaintiffs $4 to $5 in service fees for the data, which the agency uses to generate
Social Security numbers. State Plaintiffs fear they will stop receiving this funding
because some children born in their States will no longer be citizens under the
Executive Order.
But all these projected injuries suffer the same fatal defect. Because they sit
downstream of the Executive Order’s direct effects, they rely on speculation about
how the Order might be implemented and assumptions about how independent third
parties might react to its implementation. But “[a]ny prediction how the Executive
Branch might eventually implement” the Executive Order is “no more than
12
conjecture.” Trump v. New York, 592 U.S. 125, 131 (2020) (simplified). And so this
case “does not—at this time—present a dispute appropriately resolved through the
judicial process.” Id. (simplified).
1.
As stated above, we must rigorously enforce our Article III jurisdictional rules
when asked to interfere with the actions of the political branches. “A foundational
principle of Article III is that ‘an actual controversy must exist not only at the time
the complaint is filed, but through all stages of the litigation.’” Id. (simplified). So
plaintiffs must satisfy “[t]wo related doctrines of justiciability”—standing and
ripeness—to advance an Article III case or controversy. Id.
First, to show standing, plaintiffs must establish an injury in fact, causation,
and redressability. Speculation can’t be used to satisfy these requirements. The
injury in fact must be “concrete, particularized, and imminent rather than conjectural
or hypothetical.” Id. (simplified). Alleged injuries must be “impending” with some
“certain[ty];” the mere “possibl[ility]” of “future injury” is “too speculative for
Article III purposes.” Clapper, 568 U.S. at 409 (simplified). And the causation
requirement “rules out” standing based on “attenuated links,” such as “where the
government action is so far removed from its distant (even if predictable) ripple
effects that the plaintiffs cannot establish Article III standing.” FDA v. All. for
Hippocratic Med., 602 U.S. 367, 383 (2024). So “Plaintiffs cannot rely on
13
speculation about ‘the unfettered choices made by independent actors not before the
courts’” to claim standing. Clapper, 568 U.S. at 414 n.5 (simplified). The bottom
line—any asserted injury can’t be “too speculative or too attenuated.” All. for
Hippocratic Med., 602 U.S. at 383.
Second, plaintiffs must show the case is “ripe” for judicial intervention. A
claim that hinges on “contingent future events that may not occur as anticipated, or
indeed may not occur at all” is “not ripe for adjudication.” Texas v. United States,
523 U.S. 296, 300 (1998) (simplified). When challenging federal actions, courts
often defer review until a concrete controversy crystallizes. That’s because
“[d]etermination of the scope” of a federal action “in advance of its immediate
adverse effect in the context of a concrete case involves too remote and abstract an
inquiry for the proper exercise of the judicial function.” Int’l Longshoremen’s &
Warehousemen’s Union, Loc. 37 v. Boyd, 347 U.S. 222, 224 (1954). This is
especially so when a case “require[s] guesswork as to how independent
decisionmakers will exercise their judgment.” Clapper, 568 U.S. at 413.
2.
State Plaintiffs’ allegations of pecuniary injuries are “riddled with
contingencies and speculation.” Trump, 592 U.S. at 131. Their theory of standing
requires us to swallow two big pills—(1) state standing based on speculative
assumptions about the indirect, downstream costs of federal government action; and
14
(2) state standing based on predictions about how a federal policy might be
implemented. Together, these concerns doom jurisdiction.
a.
To begin, the Executive Order itself doesn’t directly withhold funding to the
States or require the States to expend any funds. And we should be skeptical of state
challenges to executive action premised on indirect fiscal effects. As the Court
recently told us:
[I]n our system of dual federal and state sovereignty, federal policies
frequently generate indirect effects on state revenues or state spending.
And when a State asserts . . . that a federal law has produced only those
kinds of indirect effects, the State’s claim for standing can become more
attenuated.
Texas, 599 U.S. at 680 n.3.
In Texas, Texas and Louisiana advanced the same derivative-costs theory that
State Plaintiffs make here. The two States challenged new Department of Homeland
Security (“DHS”) Guidelines prioritizing the arrest of only certain undocumented
aliens. See id. at 673–74. To establish standing, they claimed that leaving more
undocumented aliens within their borders would force them to spend “more money
on law enforcement, incarceration, and social services.” Id. at 687 (Gorsuch, J.,
concurring). Even crediting those factual assertions, the Court found the alleged
injury “too attenuated” to support state standing. See id. at 680 n.3. After all,
15
contingent injuries, like those based on economic harms tied to predicted population
changes, will seldom amount to a cognizable Article III injury.
As Chief Judge Sutton asked in a similar context:
Are we really going to say that any federal regulation of individuals
through a policy statement that imposes peripheral costs on a State
creates a cognizable Article III injury for the State to vindicate in
federal court? If so, what limits on state standing remain? Even though
it “would make a mockery . . . of the constitutional requirement of case
or controversy,” the States’ boundless theory of standing—in which all
peripheral costs imposed on States by actions of the President create a
cognizable Article III injury—would allow them to challenge a
“disagreeable war.” Alexander Bickel, The Voting Rights Cases, 1966
Sup. Ct. Rev. 79, 89–90 (1966). That is a bridge much too far.
Arizona v. Biden, 40 F.4th 375, 386 (6th Cir. 2022) (Sutton, C.J.) (simplified).
To Chief Judge Sutton’s concerns, I add my own. Taken to its logical
endpoint, the States’ theory would grant them standing to contest virtually any
federal action that might tangentially affect who lives or is born within their borders.
That’s because, according to State Plaintiffs, every person who crosses their borders
represents a monetary cost or benefit on their financial ledgers. Consider some
examples. If the President were to raise the annual refugee cap—does a State have
standing to sue because the presence of more aliens might someday increase state
expenditures on schools or emergency medical care? Or if Congress were to permit
nationwide over-the-counter access to hormonal birth control—does a State have
standing to sue because easier access could depress future birth rates, and thereby
reduce the accompanying SSA administrative fees? Indeed, why wouldn’t a State
16
have standing to challenge the removal of a single alien from within its borders given
the individual’s potential fiscal impact on the State? The Constitution’s case-or-
controversy requirement does not stretch so thin.
If bare conjecture that a federal action might marginally alter a State’s
population—and thereby its finances—were sufficient for standing, the injury-in-
fact prerequisite would mean little. States would be empowered to litigate every
national policy dispute under the guise of protecting their treasuries. Merely by
hypothesizing downstream fiscal effects, States could enjoy near-automatic access
to federal court while other litigants face exacting hurdles. Such asymmetry
threatens to convert States into de facto “general-public-interest plaintiffs,” drawing
Article III courts into political contests we were never meant to referee. Ann
Woolhandler & Michael G. Collins, Reining in State Standing, 94 Notre Dame L.
Rev. 2015, 2030 (2019). At a minimum, we should require costs to state treasuries
to be “directly traceable” to the federal government action to establish standing.
Biden, 600 U.S. at 490.
b.
But these indirect effects aren’t the end of the story. Because the Executive
Order was essentially enjoined on day one, we don’t know how it will actually be
implemented. The Executive Order directs federal agencies to “issue public
guidance” within 30 days “regarding this order’s implementation with respect to
17
their operations and activities.” But the district court immediately enjoined any
federal agency from “[t]aking any further steps in reliance on the Executive Order,”
including providing any implementation guidance. Thus, nothing indicates the
government’s plan for enforcing the Order, and any prediction as to how it will do
so is merely a guess.
Courts are often reluctant to recognize standing or ripeness when a
government action is challenged too soon to understand its consequences. See, e.g.,
Trump, 592 U.S. at 132–34; Missouri ex rel. Koster v. Harris, 847 F.3d 646, 653 (9th
Cir. 2017) (concluding that “allegations about the potential economic effects” of a
law yet to be implemented “were necessarily speculative”). Predicting how a
presidential parchment setting a policy goal transforms into the mechanics of actual
government policy “involves a significant degree of guesswork.” Trump, 592 U.S.
at 132. Given that the government will eventually need to consider “both legal and
practical constraints, making any prediction about future injury just that—a
prediction.” Id. at 133. Recognizing standing and ripeness based on speculative and
contingent injuries risks premature interpretation of federal policy on a barebones
record.
State Plaintiffs’ claimed injuries depend on discretionary decisions that have
yet to be made, and so any assessment of their claims to standing can only be made
after further development. Allowing “the Executive Branch’s decisionmaking
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process [to] run its course” would “bring[] more manageable proportions to the
scope of the parties’ dispute,” and supply the clarity essential to our review. Id. at
134 (simplified). Rather than breeze past our constitutional limits to get to the
merits, all this uncertainty requires restraint. Simply, that the Executive Order could
be administered in a way that harms State Plaintiffs does not establish that it will be
so administered. Nothing prevents the federal government from adopting measures
that would reduce or eliminate any projected costs to the States. But until those
discretionary choices are made, State Plaintiffs’ purported injuries remain “too
speculative” and “too attenuated.” All. for Hippocratic Med., 602 U.S. at 383. So
Article III demands we wait until the federal government provides its plans before
acting. If State Plaintiffs’ fears become concrete after implementation is announced,
federal courts will stand ready to fulfill their constitutional duty.
* * *
Based on these twin concerns—speculation on indirect, downstream costs and
assumptions about uncertain implementation—judicial intervention at this stage is
premature.
3.
Drilling down more closely on State Plaintiffs’ specific allegations confirms
that they are, at this time, too speculative and too contingent.
19
State Plaintiffs’ theory of fiscal injury begins from the premise that every child
denied citizenship under the Executive Order will likewise be categorically barred
from Medicaid, CHIP, and Title IV-E foster care benefits. But the Executive Order’s
“impact on funding is [un]certain.” Trump, 592 U.S. at 133. Each of these federal
programs extends not exclusively to U.S. citizens, but also to certain “qualified
aliens.” 8 U.S.C. § 1641(b). The Executive Order itself is silent on what
immigration status these children would receive. If they are granted lawful
permanent residence, parole, or another qualifying status, the federal benefits—and
the accompanying federal reimbursements—could remain available. See id. State
Plaintiffs also presuppose, again without support, that the federal government will
withhold every dollar of matching funds, that no other appropriations or grants will
offset the difference, and that private social-service groups will not fill any gaps in
coverage.
Thus, the Executive Order “will not inexorably have the direct effect on
downstream access to funds or other resources predicted by” State Plaintiffs. Trump,
592 U.S. at 133. How the Department of Health and Human Services (“HHS”),
DHS, and other federal agencies will address these issues is a “fundamental
uncertainty impeding proper judicial consideration at this time.” Id.
Nor do State Plaintiffs identify any evidence that federal agencies will
implement the Executive Order in the maximally punitive fashion they predict.
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Washington, for example, suggests without evidence that it will lose pregnancy-care
reimbursements for undocumented women whose newborns will lack citizenship.
That is merely a guess.
State Plaintiffs also rely on demographic assumptions to allege these
pecuniary harms. They assume that the population of undocumented aliens in their
States will remain constant, that families will not relocate or repatriate, and that they
will seek coverage under the specified state programs. Whether any of this occurs
turns on a morass of independent variables, including interstate migration patterns,
economic cycles, immigration enforcement policies, future congressional
appropriations, and the discretionary policy choices of state, local, and federal
governments.
State Plaintiffs’ theory of “administrative burdens” fares no better. It depends
on a string of unsupported predictions: that HHS, SSA, and other relevant agencies
will immediately rewrite eligibility regulations, refuse to grandfather existing
processes, mandate immediate and costly system overhauls, and deny both
transitional funding and phased‑compliance periods. Yet federal agencies possess
ample discretion to soften any new requirements—by staggering effective dates,
supplying technical assistance, or fully subsidizing implementation—and the record
contains no indication that they will choose the most onerous path. In any event,
because the Executive Order by itself doesn’t direct States to alter their verification
21
systems, the expenses State Plaintiffs might elect to incur at this stage are “at least
partly within [their] own control,” and are neither imminent nor unavoidable. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 564 n.2 (1992).
Finally, State Plaintiffs’ claimed loss of Social Security processing fees rests
on still another unsupported chain of speculation: that SSA will bar newborns
without U.S. citizenship from receiving Social Security numbers, that SSA will see
no value in continuing to receive the data supplied by State Plaintiffs, and that SSA
will withhold the processing fee. State Plaintiffs haven’t shown that SSA will refuse
to either assign Social Security numbers to non-U.S. citizens or compensate States
for transmitting birth-record data regardless of citizenship. See, e.g.,
20 C.F.R. § 422.104(a).
All this is too speculative and contingent to support jurisdiction over State
Plaintiffs’ claim at this stage. Article III doesn’t give courts license to game out
“what-ifs” or to indulge worst-case scenarios. State Plaintiffs’ fiscal projections rest
on a chain of speculative assumptions—hypothesizing the most punishing
implementation to inflict maximum financial loss. In short, every fiscal injury that
State Plaintiffs project depends on compounded assumptions about how multiple
independent actors—federal agencies, healthcare administrators, private social
services, and even individual parents—might respond to the Executive Order. The
alleged harms don’t flow from the Executive Order “in the abstract,” but rather from
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whatever measures the federal agencies may eventually adopt to implement its
directive. Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). This is
insufficient for Article III jurisdiction.
Rigorous enforcement of the Article III requirement is indispensable. Without
it, federal courts would become a forum for any parties to air generalized grievances.
Even worse, federal judges would be transformed into “virtually continuing
monitors of the wisdom and soundness” of federal government action. Allen v.
Wright, 468 U.S. 737, 760 (1984) (simplified).
C.
Any Lost Reimbursement Would Be Self-Inflicted
In addition to being too speculative and contingent, any loss of federal
reimbursements for state assistance programs would not give rise to Article III
standing because it would be a “self-inflicted injur[y]”—“not fairly traceable to the
[federal government’s] purported activities.” See Clapper, 568 U.S. at 418. Even
if losses in federal reimbursements were to come to fruition, they would be caused
by State Plaintiffs’ own voluntary choices to extend benefits to aliens ineligible to
receive federal benefits. Simply, the “unilateral decision[] by a group of States” to
extend healthcare and other benefits to those not entitled to federal reimbursement
does not create a basis to attack the Executive Order because any “financial injury”
suffered would be “due to their own independent” decisions. FEC v. Cruz, 596 U.S.
23
289, 297 (2022). After all, State Plaintiffs “cannot manufacture standing merely by
inflicting harm on themselves[.]” Clapper, 568 U.S. at 416.
Pennsylvania v. New Jersey, 426 U.S. 660 (1976), tells federal courts to guard
against self-inflicted injuries by States. In that case, Pennsylvania gave its residents
tax credits for taxes paid to other States. In turn, New Jersey taxed income earned
by Pennsylvanians in New Jersey. The result—Pennsylvania lost tax revenue
because of New Jersey’s tax. Id. at 662–63. Pennsylvania then sued New Jersey.
The Court wasn’t sympathetic to Pennsylvania. “[N]othing prevent[ed]
Pennsylvania from withdrawing [its tax] credit for taxes [its residents] paid to
New Jersey,” according to the Court. Id. at 664. Thus, the “injuries to the [State’s]
fisc[] were self-inflicted, resulting from decisions by the[] . . . state legislature[].”
Id. So when a State can avoid lost revenue by changing its tax laws, that State lacks
standing to recoup the funds. Although Pennsylvania was a matter of original
jurisdiction, the Court later made clear its principle also applies to Article III
standing. See Cruz, 596 U.S. at 297.
State Plaintiffs complain that the Executive Order will cause them to lose
federal reimbursement for their social assistance programs. They identify several
state-funded programs—such as Medicaid, CHIP, and Title IV-E foster care—which
they say will be underfunded because of the Executive Order. But any unreimbursed
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expenditures would be the result of the States’ choices to offer services to those
ineligible for reimbursement—not the Executive Order.
Take Washington’s “Apple Health” program. Apple Health is the umbrella
name for Washington’s medical assistance programs, which include the state-run
side of Medicaid and CHIP. Both federal programs reimburse States a certain
percentage of funds used to cover qualifying healthcare expenses. Historically, the
CHIP federal match has been about 65%. Under federal law, with some limited
exceptions, illegal aliens and those without a qualifying immigration status are not
eligible for Medicaid, CHIP, or other federal benefits. So federal reimbursement is
contingent on U.S. citizenship or another qualifying immigration status, such as
being a legal permanent resident. Despite those restrictions on federal
reimbursement, Washington decided to provide healthcare coverage to income-
qualified children “regardless of immigration status.” So while citizenship or lawful
immigration status is a prerequisite for Medicaid or CHIP reimbursement,
Washington volunteers to cover all children—even if they do not meet the
“immigration status requirements” for federal reimbursement.
This is a classic self-inflicted loss. Washington’s theory of injury is that the
Executive Order will lead to more non-U.S. citizens residing in the State, that the
State will need to provide healthcare benefits for those aliens, and that the federal
government will refuse to reimburse the State for those benefits. But the decision
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to provide coverage to individuals regardless of immigration status was
Washington’s alone. See Wash. Rev. Code § 74.09.470. Indeed, just last year, in
2024, Washington chose to expand its medical assistance programs to
undocumented adults. See 2023–25 Supplemental Operating Budget, ch. 376,
§ 211(82)(a), 2024 Wash. Laws 1, 338–39. Presumably, State Plaintiffs would argue
that this brand new policy decision exacerbates their alleged injury.
Though States may extend their assistance programs to anyone they like, the
federal government’s refusal to reimburse them for a voluntary policy decision
would not create a cognizable injury. Put differently, had Washington not
independently chosen to cover undocumented aliens’ healthcare expenses, then the
Executive Order would not impact Washington’s reimbursements at all. The federal
government would continue to provide reimbursements for those who qualify. That
the State elects to service residents beyond those who qualify for federal
reimbursement makes its alleged injury directly traceable to Washington State—not
Washington, D.C.
Ultimately, “[n]othing in the challenged [Executive Order] required the
plaintiff States to offer [expanded healthcare benefits]; accordingly, the financial
injury those States [allege they will suffer is] due to their own independent” funding
decisions—not the Executive Order. See Cruz, 596 U.S. at 297 (citing
26
Pennsylvania, 426 U.S. at 664). And “[n]o State can be heard to complain about
damage inflicted by its own hand.” Pennsylvania, 426 U.S. at 664.
D.
Biden v. Nebraska Doesn’t Confer Standing
State Plaintiffs rely chiefly on Biden v. Nebraska to conclude that their
asserted pecuniary injuries support standing. They cite the case for the proposition
that when the federal government cuts the number of accounts a state entity serves—
and thereby decreases the federal funding or administrative fees to which the State
would otherwise be entitled under a contract or grant—the federal government
causes the State to suffer a concrete and direct injury. That may be a fine abstract of
Biden, but it’s far afield from the derivative injuries State Plaintiffs assert here.
Simply put, the alleged harms in Biden were the direct and inescapable result of
federal action and were in no way speculative or contingent.
Biden arose from the federal government’s attempt to forgive a wide swath of
student loans. See Biden, 600 U.S. at 487–89. In August 2022, the Department of
Education announced that it was issuing “waivers and modifications” under the
Higher Education Relief Opportunities for Students Act of 2003. See id. at 487. As
it turned out, these “waivers and modifications” amounted to a plan to forgive a
monumental sum of student debt. See id. The plan was “straightforward”—
borrowers with incomes below $125,000 would have their loans discharged up to
27
$10,000 per borrower. Id. at 488. Estimates projected 43 million borrowers eligible
for relief and cancellation of about $430 billion in debt principal. Id.
That impending loan cancellation set off alarm bells for Missouri. Years
before, Missouri had created the Missouri Higher Education Loan Authority
(“MOHELA”), an instrumentality of the State, to hold and service student loans. See
id. at 488–89, 490–91. MOHELA owned over $1 billion of loans. See id. at 489.
Further, it had contracted with the federal government to service nearly $150 billion
of federal loans—meaning that MOHELA would collect payments on those loans
and provide customer service to borrowers. See id. This was good business for
MOHELA, which received $88.9 million in administrative fees for the five million
federal accounts it serviced. Id. at 489–90. The loan-forgiveness plan would have
completely discharged “roughly half of all federal borrowers”—meaning
“MOHELA could no longer service those closed accounts.” Id. at 490. So if the
loan-forgiveness plan took effect, MOHELA would lose “$44 million a year in fees
that it otherwise would have earned under its contract with the Department of
Education.” Id. That “financial harm [was] an injury in fact directly traceable to the
Secretary’s plan.” Id.
The alleged injuries in Biden were certain and direct, not speculative or
contingent. Because the “terms of the debt cancellation plan [were]
straightforward,” there was no way MOHELA could escape unscathed—it was
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going to lose $44 million a year as a direct result of the plan. Id. at 488, 490. That’s
not the case here. As discussed above, it’s speculative what effect the Executive
Order will have on the reimbursement and administration of Medicaid, CHIP, and
Title IV-E programs. Any fiscal impact would only be derivative of the Executive
Order’s implementation. And since the preliminary injunction went into effect
before the government had an opportunity to sketch out the specifics of the Executive
Order’s enforcement, a real possibility exists that the federal government may
mitigate any downstream consequences affecting these assistance programs. The
same goes for the SSA’s processing fees. Nothing stops the federal government from
continuing to collect birth data from the States or from continuing to pay processing
fees. On these contingent questions, the Executive Order is silent. So the Executive
Order by itself doesn’t command that States lose future downstream payments or
payouts.
Thus, while Biden supports the proposition that the loss of federal funding or
administrative fees can be a “direct” injury for standing purposes, that principle begs
the question of whether such a loss will occur at all. The more indirect and
derivative the costs, the more those injuries become speculative and contingent.
Picture it this way, a scraped knee is the predictable—and maybe even likely—
consequence of riding a skateboard. And once a child falls from his skateboard and
bloodies his knees, that child has suffered a “direct injury.” But no one would say
29
that the child was “injured” as soon as his parents gifted him the skateboard—no
matter how predictable the injury may have been. Likewise, the speculative and
contingent consequences of the Executive Order on federal funding and
administrative fees is worlds apart from the “straightforward” terms of the
cancellation plan in Biden—which clearly would have discharged “roughly half” of
the loans MOHELA serviced. Id. at 488, 490. In short, Biden does not control this
case because that case had nothing to do with Article III’s bar on speculative and
contingent injuries.
II.
Because we don’t have jurisdiction to review State Plaintiffs’ claims at this
time, I do not address their merits or the scope of the district court’s injunction.
I respectfully dissent in part.
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