Immigration – Birthright citizenship – Executive order

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Where a U.S. District Court judge preliminarily enjoined the enforcement and implementation of Executive Order No. 14160, the preliminary injunctions must be vacated in part, as they may apply only to agency officials rather than the agencies themselves, but should otherwise be affirmed, as the plaintiffs are likely to succeed on the merits of their claims that the children that the EO describes are entitled to birthright citizenship under 8 U.S.C. §1401(a).

“… The EO’s ‘purpose’ is to deny birthright citizenship to children born after the EO’s effective date if, at the time of their birth, their fathers are not United States citizens or lawful permanent residents (LPR) and their mothers are in this country either (1) unlawfully or (2) temporarily. …

“… The Government is right that the Framers of the Citizenship Clause sought to remove the stain of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which shamefully denied United States citizenship to ‘descendants of Africans who were imported into this country, and sold as slaves,’ even when the descendants were born here. … But the Framers chose to accomplish that just purpose in broad terms, as both the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898), and Congress in passing §1401(a) have recognized. The Government is therefore wrong to argue that the plaintiffs are not likely to succeed in showing that the children that the EO covers are citizens of this country at birth, just as the Government is wrong to argue that various limits on our remedial power independently require us to reverse the preliminary injunctions. …

“Against this backdrop, we first zero in on the plaintiffs’ contention that their §1401(a) claims are likely to succeed on the merits even if the Government’s view of what Wong Kim Ark decided were correct. Because the plaintiffs are clearly right on this score, we agree that they are likely to succeed for this reason alone on the merits of their §1401(a) claims. But, as we also will explain, we conclude that Wong Kim Ark construed the Citizenship Clause just as the plaintiffs contend that it did. And so, in the end, we conclude that the plaintiffs are likely to succeed on the merits of their claims three times over — first, in showing that the children that the EO describes are entitled to birthright citizenship under §1401(a) even if Wong Kim Ark must be read as the Government urges us to read it; second, in showing that those children are entitled to birthright citizenship under that federal statutory provision because Wong Kim Ark may not be so read; and third, in showing that, for the very same reason, those children are entitled to birthright citizenship under the Citizenship Clause itself. …

“In short, the materials before us make clear that Congress, when enacting §1401(a), was recognizing the broad scope of birthright citizenship that the plaintiffs identify. Thus, it is quite clear for this reason alone that the plaintiffs are likely to succeed as to the merits of their §1401(a) claims. …

“In these circumstances, we think it appropriate to address the parties’ thoroughly briefed dispute over the proper way to understand the Court’s decision in Wong Kim Ark. As we will explain, that dispute must be resolved in a way that supports the plaintiffs’ position. And so, we conclude that the plaintiffs clearly are likely to succeed as to the merits of all the claims before us. …

“When the smoke clears, what remains is the direct statement about the purpose of the words of the Fourteenth Amendment’s Citizenship Clause that Wong Kim Ark plainly set forth. That statement follows seamlessly from the rationale that the Court gave for attributing that purpose to those words. And, of course, the words themselves — ‘subject to the jurisdiction thereof’ — easily bear such a construction. As a result, Wong Kim Ark on its own requires us to reject the Government’s contention that the plaintiffs are not likely to succeed on the merits of their claims under the Citizenship Clause. And, given that the Government does not dispute that §1401(a) secures birthright citizenship to at least all those entitled to it under the Constitution, Wong Kim Ark thus shows that the plaintiffs are likely to succeed as to the merits of all the claims at issue. …

“Our nation’s history of efforts to restrict birthright citizenship — from Dred Scott in the decade before the Civil War to the attempted justification for the enforcement of the Chinese Exclusion Act in Wong Kim Ark — has not been a proud one. Indeed, those efforts each have been rejected, once by the people through constitutional amendment in 1868 and once by the Court relying on that same amendment three decades later, and at a time when tensions over immigration also were high. Even the denial of citizenship to Native American tribal members no longer persists, thanks to a statute passed more than a century ago. …

“The ‘lessons of history’ thus give us every reason to be wary of now blessing this most recent effort to break with our established tradition of recognizing birthright citizenship and to make citizenship depend on the actions of one’s parents rather than — in all but the rarest of circumstances — the simple fact of being born in the United States. United States v. Di Re, 332 U.S. 581, 595 (1948). Nor does the text of the Fourteenth Amendment, which countermanded our most infamous attempt to break with that tradition, permit us to bless this effort, any more than does the Supreme Court’s interpretation of that amendment in Wong Kim Ark, the many related precedents that have followed it, or Congress’s 1952 statute writing that amendment’s words in the U.S. Code.”

Doe, et al. v. Trump, et al. (Lawyers Weekly No. 01-209-25) (100 pages) (Barron, C.J.) Appealed from a decision by Sorokin, J., in the U.S. District Court for the District of Massachusetts. Eric D. McArthur, with whom Yaakov M. Roth, Mark R. Freeman, Sharon Swingle, Brad Hinshelwood and Derek Weiss were on brief, for the defendants-appellants; William J. Olson, Jeremiah L. Morgan, William J. Olson, P.C., Jeffrey C. Tuomala, Michael Boos and Citizens United on brief for America’s Future, Gun Owners of America, Inc., Gun Owners Foundation, Citizen United, U.S. Constitutional Rights Legal Defense Fund, Leadership Institute and Conservative Legal Defense and Education Fund as amici curiae supporting the appellants; Judd E. Stone II, Christopher D. Holton, Ari Cuenin, Stone Hilton PLLC, Daniel Z. Epstein and America First Legal Foundation on brief for Former National Security Official Joshua Steinman as amicus curiae supporting the appellants; R. Trent McCotter, Boyden Gray PLLC, Daniel Z. Epstein, America First Legal Foundation, George W. Vien, Pietro A. Conte and Donnelly, Conroy, & Gelhaar on brief for Members of Congress as amici curiae supporting the appellants; Jonathan Skrmetti and J. Matthew Rice on brief for the state of Tennessee as amicus curiae supporting the appellants; Matt A. Crapo, Christopher J. Hajec, Gabriel R. Canaan and Immigration Reform Law Institute on brief for Immigration Reform Law Institute as amicus curiae supporting the appellants; Shankar Duraiswamy, with whom Matthew J. Platkin, Viviana M. Hanley, Elizabeth R. Walsh, Shefali Saxena, Jeremy M. Feigenbaum, Andrea Joy Campbell, Gerard J. Cedrone, Jared B. Cohen, Rob Bonta, Denise Levey, Lorraine López, Delbert Tran, Annabelle Wilmott, Michael L. Newman, Marissa Malouff, Irina Trasovan, Christopher D. Hu, Phil Weiser, Shannon Stevenson, William M. Tong, Janelle Rose Medeiros, Brian L. Schwalb, Caroline S. Van Zile, Jeremey R. Girton, Kathleen Jennings, Vanessa L. Kassab, Ian R. Liston, Anne E. Lopez, Kaliko’onālani D. Fernandes, Aaron M. Frey, Thomas A. Knowlton, Dana Nessel, Toni L. Harris, Neil Giovanatti, Stephanie M. Service, Anthony G. Brown, Adam D. Kirschner, Julia Doyle, Keith Ellison, John C. Keller, Aaron D. Ford, Heidi Parry Stern,  Letitia James, Matthew William Grieco, Ester Murdukhayeva, Raúl Torrez, James W. Grayson, Jeff Jackson, Daniel P. Mosteller, Peter F. Neronha, Katherine Connolly Sadeck, Joshua L. Kaul, Gabe Johnson-Karp, Charity R. Clark, Jonathan T. Rose, David Chiu and David S. Louk were on brief, for the plaintiffs-appellees; Oren Sellstrom, with whom Ivan E. Espinoza-Madrigal, Jacob M. Love, Mirian Albert and Lawyers for Civil Rights were on brief, for the plaintiffs-appellees; Vincent Levy and Hannah Bartlett on brief for Professor Rothman as amicus curiae supporting the appellees; Lori Chen, Owen R. Wolfe, Wendy M. Feng, Seyfarth Shaw LLP, Rahat N. Babar, Edgar Chen, Chris M. Kwok and National Asian Pacific American Bar Association on brief for National Asian Pacific American Bar Association, et al., as amici curiae supporting the appellees; Douglas E. Lieb and Kaufman Lieb Lebowitz & Frick on brief for Immigration Law Scholars Kristin Collins, Gerald Neuman and Rachel Rosenbloom as amici curiae supporting the appellees; Elizabeth B. Wydra, Brianne J. Gorod, Smita Ghosh, Anna K. Jessurun and Constitutional Accountability Center on brief for Scholars of Constitutional Law and Immigration as amici curiae supporting the appellees; Anna M. Baldwin, Campaign Legal Center, Angelo Ancheta and Dēmos on brief for Secure Families Initiative as amicus curiae supporting the appellees; Jonathan D. Hacker, Arjun A. Shenoy, Anthony S. Wang, O’Melveny & Myers, Jessica Levin, Melissa R. Lee, Center for Civil Rights and Critical Justice, Robert S. Chang, Susan McMahon, Fred T. Korematsu Center for Law and Equality, Bethany Li, Niji Jain, Razeen Zaman and Asian American Legal Defense and Education Fund on brief for Fred T. Korematsu Center for Law and Equality, Asian American Legal Defense and Education Fund, Center for Civil Rights and Critical Justice and 84 Additional Nonprofit and Grassroots Organizations and Race and Law Centers as amici curiae supporting the appellees; Reena Parikh, John Cort, Kira Hinchey, Shaquan McDowell, Carolyn Zaccaro, Boston College Legal Services LAB, Juan Camilo Mendez, Sarai Suarez Campos and HarborCOV on brief for Non-Profit Organizations Serving Immigrant Survivors of Domestic Violence and Sexual Assault as amici curiae supporting the appellees; James J. Pastore, Stephanie D. Thomas, Natalie Tsangu, Chester S. Dubov, Debevoise & Plimpton, Edward G. Caspar, Olivia N. Sedwick and Lawyers’ Committee for Civil Rights Under Law on brief for National Association for the Advancement of Colored People, the League of Women Voters and the Equal Justice Society as amici curiae supporting the appellees; Richard B. Kendall and Kendall Brill & Kelly on brief for Historians Martha S. Jones and Kate Masur as amici curiae supporting the appellees; Jonathan Weinberg, Linus Chan, Douglas Jensen, Michael Bass and Sher Tremonte LLP on brief for American Immigration Lawyers Association as amicus curiae supporting the appellees; Dena Kia, Ishika Desai, Neel Chatterjee, Andrew Ong and Goodwin Procter LLP on brief for Professors Eika Lee, Paul Finkelman and Gabriel J. Chin as amici curiae supporting the appellees; Matthew Holder, Communications Workers of America, Alice O’Brien, National Education Association, Mario Martinez, United Farm Workers of America, Lisa Pedersen, United Food and Commercial Workers International Union, Steven K. Ury, Elena Medina, Deborah L. Smith, Mac McMechan, Service Employees International Union, Daniel McNeil, American Federation of Teachers, Teague Paterson and American Federation of State, County, & Municipal Employees, AFL-CIO, on brief for Service Employees International Union, American Federation of Teachers, American Federation of State, County and Municipal Employees, Communications Workers of America, National Education Association, United Farm Workers of America and United Food and Commercial Workers International Union, as amici curiae supporting the appellees (Docket No. 25-1169) (Oct. 3, 2025).

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