CASA, INC., et al., v. DONALD J. TRUMP, et al.
Civ. No. DLB-25-201
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
February 5, 2025
Case 8:25-cv-00201-DLB Document 65 Filed 02/05/25
In 1868, the United States Congress ratified the
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 wherein they reside.
More than 150 years after the
The day after the Executive Order was issued, CASA, Inc. and Asylum Seeker Advocacy Project, two nonprofit organizations that provide services to immigrants, and five pregnant women without permanent legal status who expect to give birth in the United States in the coming months filed this lawsuit against President Trump, the Secretary of the U.S. Department of State, the U.S. Attorney General, the Secretary of the U.S. Department of Homeland Security, the Director of U.S. Citizenship and Immigration Services, the Commissioner of the Social Security Administration, and the United States of America. The plaintiffs allege that the Executive Order violates the
The plaintiffs easily have met the standard for a preliminary injunction. There is a very strong likelihood of success on the merits. The plaintiffs will face irreparable harm without injunctive relief. And the balance of the equities and the public interest strongly weigh in favor of a preliminary injunction. The motion for a preliminary injunction is granted. The defendants are enjoined from implementing and enforcing the Executive Order.
At noon on January 20, 2025, President Trump took the oath of office of the President of the United States. Later that day, President Trump signed an Executive Order called “Protecting the Meaning and Value of American Citizenship.” The Executive Order purports to interpret the clause “subject to the jurisdiction thereof” in the Citizenship Clause of the
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, 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.
Id.
Section 2 of the Order establishes the policy of the United States government. See id. § 2. Under Section 2, no federal department or agency “shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to a person whose mother was unlawfully present or lawfully present with only temporary status and whose father was neither a United States citizen nor lawful permanent resident at the time of that person‘s birth. Id. § 2(a). The policy applies only to persons who are born in the United States on or after February 19, 2025. Id. § 2(b). It does not impact the ability of other people, including children of lawful permanent residents, to get documentation of their American citizenship. Id. § 2(c).
Section 3 of the Order discusses enforcement. Id. § 3. It instructs the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the 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 that their agencies’ officers, employees, and agents act in accordance with the Order. Id. § 3(a). It also instructs the heads of executive departments and agencies to issue public guidance regarding their implementation of the Order within 30 days of its issuance. Id. § 3(b).
On January 21, 2025, the plaintiffs filed this lawsuit against President Trump, the Secretary of the U.S. Department of State, the U.S. Attorney General, the Secretary of the U.S. Department of Homeland Security, the Director of U.S. Citizenship and Immigration Services, the Commissioner of the Social Security Administration, and the United States of America. ECF 1, ¶¶ 50-56. Each individual defendant is sued in their official capacity. Id. The plaintiffs claim that the Executive Order violates the
The two organizational plaintiffs are CASA, Inc. (“CASA“) and Asylum Seeker Advocacy Project (“ASAP“). CASA is a nonprofit organization headquartered in Prince George‘s County, Maryland. Id. ¶ 19. It “is the largest membership-based immigrant rights organization in the mid-Atlantic region, with more than 175,000 members.” Id. Its mission “is to create a more just society by building power and improving the quality of life in working-class Black, Latino/a/e, Afro-descendent, Indigenous, аnd immigrant communities.” Id. ¶ 20. It helps members apply for public benefits and offers free legal consultations. Id. ¶ 22. CASA does not issue formal membership to anyone under the age of 15, though it does provide services to young people and their families. Id. ¶ 24. CASA‘s members include women without lawful status who are pregnant or plan to give birth in the United States. Id. ¶ 25. Under the Order, their children born in the United States would no longer be U.S. citizens.
ASAP is a nonprofit organization headquartered in New York, New York. Id. ¶ 31. It “is the largest membership-based organization of asylum-seekers in the United States, with over 680,000 members from more than 175 countries who reside in all 50 states and several U.S. territories.” Id. “ASAP‘s mission is to help its members—individuals seeking asylum—to build a more welcoming United States.” Id. ¶ 32. To that end, it provides members with community and legal support. Id. ASAP does not extend formal membership to people under the age of 14, but the benefits of ASAP membership may extend to them through their parents’ membership. Id. ¶ 35. Most ASAP members have applied for asylum and cannot be deported while their asylum applications are pending. Id. ¶ 36. ASAP expects that “[h]undreds or even thousands of [its] members will give birth to children in the United States over the coming weeks and months[.]” Id. ¶ 37. Despite being born in the United States, those children would not be U.S. citizens under the Order.
The individual plaintiffs—Maribel, Juana, Trinidad Garcia, Monica, and Liza—are proceeding under pseudonyms.1 ECF 3. Maribel is a member of CASA. ECF 1, ¶ 45. She is undocumented and has lived in the United States for 18 years. Id. She is pregnant and due in July 2025. Id. Juana is also a CASA member. Id. ¶ 46. She has a pending asylum claim. Id. She is two months pregnant. Id. Trinidad Garcia is a member of ASAP. Id. ¶ 47. She and her partner came to the United States on tourist visas in 2017 and filed affirmative asylum applications. Id. They are awaiting their asylum interview. Id. Trinidad Garcia is pregnant and due in August 2025. Id. She and her partner are citizens of Venezuela. Id. Venezuela does not provide consular services in the United States, so she fears that her child would be rendered stateless by the Order. Id. Monica is also an ASAP member from Venezuela. Id. ¶ 48. She has Temporary Protected Status and has filed an application for asylum. Id. She is pregnant and due in August 2025.
persecution from the Russian government. Id. They are afraid to apply for Russian citizenship for their child and are worried their child will be rendered stateless by the Order.2
The plaintiffs filed a motion for a temporary restaining order and preliminary injunction. ECF 2. The government opposed the preliminary injunction. ECF 40. The plaintiffs filed a reply. ECF 46. Three amici filed briefs: a group of local governments and local government officials, ECF 37; the Immigration Reform Law Institute, ECF 63; and the State of Tennessee, ECF 50. The Court heard argument on the motion on February 5, 2025.
II. Discussion
The plaintiffs seek a preliminary injunction that enjoins the implementation and enforcement of the Executive Order. The government argues that the plaintiffs do not have a cause of action and that preliminary injunctive relief is unwarranted. The Court finds that the plaintiffs do have a cause of action and that preliminary injunctive relief is warranted.
A. Reviewability of the Executive Order
As a threshold matter, the Court must decide if the plaintiffs’ constitutional claim is subject to judicial review. See Am. Forest Res. Council v. United States, 77 F.4th 787, 796 (D.C. Cir. 2023) (“Before [the court] turn[s] to the merits, [it] must decide whether the plaintiffs’ claims are reviewable.“).3
The plaintiffs claim the Executive Order violates the
The government insists the plaintiffs have an “available and exclusive mechanism to challenge disputes about citizenship under the INA.” ECF 40, at 9. According to the government, the plaintiffs must pursue their claims through a declaratory action under
This INA provision does not prevent the plaintiffs from bringing a facial constitutional challenge to the Executive Order. The text of the INA does not indicate that
Further, the plaintiffs cannot pursue their constitutional challenge to the Executive Order under
The plaintiffs can seek protection from unconstitutional executive action in this Court. As the Supreme Court has explained:
“The very essence of civil liberty . . . certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Traditionally, therefore, “it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do.”
Davis v. Passman, 442 U.S. 228, 242 (1979) (first quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803); and then quoting Bell, 327 U.S. at 684). The Court can review the plaintiffs’ claim that the Executive Order violates the
B. Motion for Preliminary Injunction
To obtain a preliminary injunction, the plaintiffs must establish four factоrs: (1) that they are likely to succeed on the merits; (2) that they are likely to suffer irreparable harm if preliminary relief is not granted; (3) that the balance of equities favors them; and (4) that an injunction is in the public interest. See Frazier v. Prince George‘s County, 86 F.4th 537, 543 (4th Cir. 2023) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The plaintiffs must satisfy all four factors to obtain a preliminary injunction. Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010). A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
The plaintiffs have shown they are entitled to this extraordinary remedy.
1. Likelihood of Success
The Citizenship Clause of the
The President‘s novel interpretation of the Citizenship Clause contradicts the plain language of the
The case arose when Wong Kim Ark, who was born in San Francisco to parents who were Chinese citizens, traveled to China for a temporary visit and was denied re-entry into the United States “upon the sole ground that he was not a citizen of the United States.” Id. at 653. Wong Kim Ark insisted he was a U.S. citizen because he was born in California. Id. If he was a citizen, the “Chinese Exclusion Acts,” which prohibited “persons of the Chinese race, and especially Chinese laborers, from coming into the United States,” would not apply to him. Id.
The Supreme Court framed “the question presented” like this:
whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution: ‘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 wherein they reside.’
To answer this question, the Supreme Court began with the text of the Constitution and determined that the “constitution nowhere defines the meaning of these words.” Id. at 654. It then interpreted the Citizenship Clause “in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.” Id. The Court observed that “[t]he language of the constitution . . . could not be understood without reference to [English] common law.” Id.; see id. at 655 (“The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” (quoting Smith v. Alabama, 124 U.S. 465, 478 (1888))).
The Court prefaced its review of English common law as follows:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power‘—of the king. The principle embraced all persons born within the king‘s allegiance, and subject to his protection. Such allegiance and protection were mutual, as expressed in the maxim, ‘Protectio trahit subjectionem, et subjection protectionem,‘—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long аs
they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king‘s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.
Id. at 655. That principle, as the Court explained, pervaded English common law cases. See id. at 655-58.
After a lengthy discussion of common law cases, the Court concluded:
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador, or of an alien enemy in a hostile occupation of the place where thе child was born.
The Court found that this “same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.” Id. In cases decided after the Declaration of Independence, courts in the United States “assumed . . . that all persons born in the United States were citizens of the United States.” Id. (citing Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 119 (1804)). The Court noted that, in Levy‘s Lessee v. McCartee, 31 U.S. (6 Pet.) 102 (1832), Justice Story “treated it as unquestionable that by [the principles of common law] a child born in England of alien parents was a natural-born subject.” 169 U.S. at 662. And in United States v. Rhodes, Justice Swayne also relied on English common law:
All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. We find no warrant for the opinion that this great principle of common law has ever been changed in the United States. It has always obtained here, with the same vigor, and subject only to the same exceptions, since as before the Revolution.
Id. at 662-63 (quoting United States v. Rhodes, 27 F. Cas. 785, 790 (C.C.D. Ky. 1866) (Swayne, Cir. J.)). Justice Sewall of the Supreme Court of Massachusetts stated in Kilham v. Ward:
The doctrine of common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born; and allegiance is not personal to the sovereign in the extent that it has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born.
Id. (quoting Kilham v. Ward, 2 Mass. (1 Tyng) 236, 264-65 (Mass. 1806)).
After an extensive review of English common law, decisions of courts in the United States, and recent acts of Congress, the Supreme Court concluded: “Here is nothing to countenance the theory
With their enactment, the
As appears on the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption.
Id. at 676. The “main purpose [of the Citizenship Clause] doubtless was . . . to establish the citizenship of free negroes, which had been denied” in Dred Scott v. Sandford, 60 U.S. 393 (1857), and “to put it beyond all doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.” Id. The amendment‘s “opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race.” Id.
The Court then interpreted the clause “subject to the jurisdiction thereof.” Id. at 676-82. At the time, the only case that had decided the meaning of the clause was Elk v. Wilkins, 112 U.S. 94 (1884). Wong Kim Ark, 169 U.S. at 680. Justice Gray, the author of Wong Kim Ark, authored Elk only four years earlier. As Justice Gray stated in Wong Kim Ark, the Elk Court held that “an Indian born a member of one of the Indian tribes within the United States . . . was not a citizen of the United States, as a person born in the United States, ‘and subject to the jurisdiction thereof,’ within the meaning of the clause in question.” Id. The Wong Kim Ark Court stated the rationale for the Elk holding:
Indian tribes, being within the territorial limits of the United States were not, strictly speaking, foreign states, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes, and were not part of the people of the United States . . . Indians born within the territorial limits of the United
States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more “born in the United States, and subject to the jurisdiction thereof,” within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
Id. at 681. Justice Gray then explained why Elk did not apply to the case at bar: “The 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.” Id. at 682.
Having distinguished Elk as a unique case that “concerned only members of the Indian tribes within the United States,” the Wong Kim Ark Court determined that:
[t]he real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases—children born of alien enemies of hostile occupation, and children of diplomatic representatives of a foreign state—both of which . . . by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
Ultimately, the Wong Kim Ark Court made these “irresistibl[e] . . . conclusions“:
The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
Id. at 693. Except in rare instances, the
The Wong Kim Ark Court then applied these holdings to the facts before it. Recall that Wong Kim Ark was denied re-entry into the United States because it was believed he was not a citizen, and if he was not a citizen, the Chinese Exclusion Acts barred his entry into the United States. Id. at 653. The Court determined that no legislation to exclude Chinese citizens could apply to a person “born in the United States of Chinese parents.” Id. at 694-99. Yet the United States
The Wong Kim Ark Court acknowledged that Congress could deny naturalization to someone born in China. Id. But the
In the end, the Court answered the initial question presented—“whether a child born in the United States, of parents of Chinese descent, who at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States . . . and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States“—“in the affirmative.” Id. at 705.
The government does not dispute that Wong Kim Ark is binding precedent. Nor does it argue that Wong Kim Ark was wrongly decided or should be overturned. Instead, the government claims that, under Wong Kim Ark, to be “subject to the jurisdiction” of the United States, a person‘s parents must, at the time of the person‘s birth, be lawfully domiciled in the United States, ECF 40, at 14, 24-26, and bear “‘direct and immediate allegiance’ to this country, unqualified by an allegiance to any other foreign power,” id. at 4. Nothing in Wong Kim Ark remotely supports the government‘s narrow reading of the decision.
To address the government‘s arguments, the Court first must clarify Wong Kim Ark‘s holding. Wong Kim Ark held that, under the
The government seems to dismiss Wong Kim Ark‘s holding, and the lengthy analysis that supports it, as dicta. On the government‘s account, Wong Kim Ark‘s holding was limited to the specific facts of the case: A person born in the United States whose foreign-born parents were “domiciled” in the United States at the time of his birth is “subject to the jurisdiction of” the United States. ECF 40, at 24-26. Wong Kim Ark cannot reasonably be read that narrowly. However, even if not part of the Court‘s holding, Wong Kim Ark‘s statements that every person born in the United States is “subject to the jurisdiction thereof” and thus a citizen by birth (with certain exceptions) certainly are not dicta. “Dictum is a ‘statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding—that, being peripheral, may not have received the full and careful consideration of the court that uttered it.‘” Payne v. Taslimi, 998 F.3d 648, 654-55 (4th Cir. 2021) (quoting Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir. 1999)). If “a precedent‘s reasoning” is “necessary to the outcome,” it “must be followed.” Id. at 655.
Wong Kim Ark‘s statement that the “fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth” with certain recognized exceptions, 169 U.S. at 693, could not “have been deleted without seriously impairing the analytical foundations of the holding,” see Payne, 998 F.3d at 654. Even a cursory review of the decision reveals that this statement and similar statements were not “peripheral” to the holding. They were central to it. And there can be no question that the Court gave them “full and careful consideration.” See id. at 655. The Court thoroughly discussed the history of citizenship by birth at English common law, the decisions of U.S. courts applying the common law, and the history and text of the
Even if they were dicta, this Court is not free to ignore them. “[C]arefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004) (quoting Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003)). This Court “is ‘bound by Supreme Court dicta almost as firmly as by the Court‘s outright holdings, particularly when the dicta is recent and not enfeebled by later statements.‘” See United States v. Fareed, 296 F.3d 243, 247 (4th Cir. 2002) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)). Though Wong Kim Ark can hardly be considered “recent,” the Supreme Court‘s continual recognition that people born in the United States are citizens by birth confirms that this Court must, at the very least, treat Wong Kim Ark‘s interpretation of the
Return to the government‘s arguments. The government argues that, under Wong Kim Ark, a person‘s parents must, at the time of the person‘s birth, be lawfully domiciled in the country for the person to be “subject to the jurisdiction” of the United States. ECF 40, at 14, 24-26. The government insists Wong Kim Ark imposes a parental domicile requirement for citizenship under the
Next, the government argues that, under Wong Kim Ark, a person born in the United States is “subject to the jurisdiction”
Contrary to the government‘s positions, Wong Kim Ark did not interpret “subject to the jurisdiction thereof” in the Citizenship Clause of the
The Executive Order directly conflicts with Wong Kim Ark. Under Wong Kim Ark, a person “born in the United States” and “subject to the jurisdiction thereof” encompasses every person born in this country save specific classes of people. The Executive Order purports to expand the classes of people that are not “subject to the jurisdiction thereof” and thus to deny citizenship by birth to people who are entitled to it under the Constitution. The children targeted by the Executive Order do not fit within any of the limited exceptions to citizenship by birth identified in Wong Kim Ark. They are not children of ambassadors, children of enemies in the country during a hostile occupation, children born on foreign seas, or children born into Indian tribes.5 They are
precedent. The President does not have the authority to strip them of their constitutional right to citizenship by birth.
The government cites no case decided after Wong Kim Ark that supports the President‘s interpretation of the
described in the Executive Order. ECF 40, at 18. The problem for the government is that Wong Kim Ark repudiated this language from The Slaughter-House Cases because it was “wholly aside from the question in judgment, and from the course of reasoning bearing upon that case,” and “[i]t was unsupported by any argument, or by any reference to authorities.” Id. at 678.7 The government has not identified any case that supports the President‘s interpretation of the
In the 125 years since Wong Kim Ark, the Supreme Court has never questioned whether a child born in the United States—whose parents did not have lawful status or were in the country temporarily—was an American citizen. In United States ex rel. Hintopoulos v. Shaughnessy, the petitioners, who were married to each other, worked as crew members on foreign ships that came into port in the United States. 353 U.S. 72, 73 (1957). They entered the United States lawfully and remаined in the country after their 29-day visas expired. Id. at 73. The wife gave birth three months after her permission to stay expired and two months after her husband‘s permission to stay expired. Id. Half a year later, deportation proceedings were instituted against both parents, and they asked to suspend deportation “on the ground of the economic detriment that would befall their minor son in the event they were deported.” Id. at 74. The Court remarked that their child was, “of course, an
American citizen by birth.” Id. at 73; see also id. at 79 (Douglas, J., dissenting) (“The citizen is a five-year-old boy who was born here and who, therefore, is entitled to all the rights, privileges, and immunities which the
In other cases, the Supreme Court never has intimated that the immigration status of parents might affect whether their U.S.-born children are citizens at birth. See, e.g., INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (noting that the undocumented respondent—who had entered the country without permission—“had given birth to a child, who, born in the United States, was a citizen of this country“); Vance v. Terrazas, 444 U.S. 252, 255 (1980) (“Appellee . . . was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship.“); Rogers v. Bellei, 401 U.S. 815, 828 (1971) (acknowledging that American citizenship law “follows English concepts with an acceptance of the jus soli“); Nishikawa v. Dulles, 356 U.S. 129, 131 (1958) (“Petitioner was born in Artesia, California, in 1916. By reason of that fact, he was a citizеn of the United States, and because of the citizenship of his parents, he was also considered by Japan to be a citizen of that country.“); Kawakita v. United States, 343 U.S. 717, 720 (1952) (noting that petitioner was born in the United States to Japanese citizen parents and “was thus a citizen of the United States by birth“); Hirabayashi v. United States, 320 U.S. 81, 96 (1943) (confirming that people of Japanese descent were citizens because they were “born in the United States“); Perkins v. Elg, 307 U.S. 325, 327, 329 (1939) (citing Wong Kim Ark and finding that the plaintiff was still an American citizen because of her birth in the United States, even though she had moved abroad as a minor and acquired Swedish citizenship); Morrison v. California, 291 U.S. 82, 85 (1934) (“A person of Japanese race is a citizen of the United States if he was born within the United States.“); Weedin v. Chin Bow, 274 U.S. 657, 670 (1927) (discussing Wong Kim Ark and noting that a child born in the United States “was nevertheless, under the language of the
The government‘s only response to these Supreme Court cases: “[I]t is not unusual for the Supreme Court, after fully exploring a legal issue, to reach a conclusion that conflicts with earlier assumptions.” ECF 40, at 28. That is no response at all.
The Executive Order flouts the plain language of the
“Citizenship is a most precious right[,] . . . expressly guaranteed by the
Here, the plaintiffs have established a strong likelihood of success of the merits on their claim that the Executive Order violates the
The government argues that any harm is “speculative” bеcause the plaintiffs’ children will have “other routes of obtaining status,” such as seeking asylum. ECF 40, at 29. This argument is callous and wrong. The irreparable harm to the plaintiffs and their unborn children is concrete and imminent. If the Court does not enjoin enforcement of the Executive Order, children born in the United States who are subject to the Order immediately will be denied the benefits and rights of U.S. citizenship. The benefits of citizenship include access to certain government public benefit programs such as health care through the Children‘s Health Insurance Program and food assistance through the Supplemental Nutrition Assistance Program. See ECF 37, at 10. The rights of citizenship include the right to live in the United States lawfully and without fear of deportation. Without an injunction, all U.S.-born children subject to the Executive Order will have no legal status in this country when they are born. Without legal status at birth, children could be placed in removal proceedings and deported. Many of the plaintiffs have pending asylum applications or temporary legal status and are not subject to removal. If the Order goes into effect, their children will be without legal status and may be subjеct to removal even if they are not. The Order may cause some plaintiffs to be separated from their children. See Wanrong Lin v. Nielsen, 377 F. Supp. 3d 556, 564-65 (D. Md. 2019) (finding plaintiff would be irreparably harmed if deported and separated from his wife and children in the United States).
Additionally, some of the children of the plaintiffs will be stateless if the Order goes into effect. See ECF 2-5, ¶ 4 (statement of plaintiff Liza that her child would be stateless without American citizenship as she and her husband cannot safely apply for Russian citizenship for their child); ECF 2-7, ¶¶ 7-9 (statement of plaintiff Monica that her child would be stateless without American citizenship because there is no Venezuelan consulate in the United States where she could apply for her child‘s Venezuelan citizenship). For stateless newborns, their “very existence [will be] at the
Without an injunction, the plaintiffs will face instability and uncertainty about the citizenship status of their newborn babies, and their children born on U.S. soil will be denied the rights and benefits of U.S. citizenship. The Executive Order, if not enjoined, will cause the plaintiffs and their children grave, irreparable harm.
3. Balance of Equities and Public Interest
The final two fаctors are the balance of the equities and the public interest. The balance of the equities and the public interest “merge when the Government is the opposing party.” Miranda, 34 F.4th at 365 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). To balance the equities, the Court considers “the relative harms to the applicant and respondent, as well as the interests of the public at large.” Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J., in chambers) (quoting Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers)). The equities and the public interest weigh very strongly in the plaintiffs’ favor.
Today, virtually every baby born on U.S. soil is a U.S. citizen upon birth. That is the law and tradition of our country. That law and tradition will remain the status quo pending the resolution of this case. The government will not be harmed if enforcement of the Executive Order is enjoined. “[A] state is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.” Centro Tepeyac v. Montgomery County, 722 F.3d 184, 191 (4th Cir. 2013) (quoting Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)). And “upholding constitutional rights surely serves the public interest.” Id. (quoting Giovani, 303 F.3d at 521); accord Legend Night Club v. Miller, 637 F.3d 291, 303 (4th Cir. 2011) (“[U]pholding constitutional rights is in the public interest.“). If the Executive Order is not enjoined, local governments will face significant harm. Local governments are responsible for issuing birth certificates, which, under the Order, will no longer automatically prove citizenship. See ECF 37, at 14. The Order would require local governments to either change the information provided on birth certificates or develop an entirely new process to verify citizenship. Id. at 15. Additionally, localities will bear a financial burden if the Order takes effect. Currently, local governments receive federal funding for foster care expenses and health care for children who “qualif[y]” for assistance.
The balance of the equities and the public interest strongly weigh in favor of a preliminary injunction that maintains the status quo during litigation.
4. Nationwide Injunction
“District courts have broad discretion to craft remedies based on the circumstances of a case, but likewise must ensure that ‘a preliminary injunction is no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.‘” HIAS, Inc. v. Trump, 985 F.3d 309, 326 (4th Cir. 2021) (quoting Roe v. Dep‘t of Def., 947 F.3d 207, 231 (4th Cir. 2020)). Indeed, “[a] district court may issue a nationwide injunction so long as the court ‘mold[s] its decree to meet the exigencies of the particular case.‘” Id. (alteration in original) (quoting Trump v. Int‘l Refugee Assistance Project, 582 U.S. 571, 580 (2017)). Only a nationwide injunction will provide complete relief to the plaintiffs. ASAP has “over 680,000 members . . . who reside in all 50 U.S. states and several U.S. territories.” ECF 1, ¶ 31. ASAP expects that “[h]undreds or even thousands of ASAP members will give birth to children in the United States over the coming weeks and months.” Id. ¶ 38. Because ASAP‘s members reside in every state and hundreds of them expect to give birth soon, a nationwide injunction is the only way “to provide complete relief” to them. Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).
Further, “a nationwide injunction may be appropriate when the government relies on a ‘categorical policy.‘” See HIAS, 985 F.3d at 326. The Executive Order is a categorical policy. A nationwide injunction against the categorical policy in the Executive Order is appropriate. It also is necessary because the policy concerns citizenship—a national concern that demands a uniform policy. See Arizona v. United States, 567 U.S. 387, 394-95 (2012) (noting that the federal government has “constitutional power to ‘establish an uniform Rule of Naturalization‘” (emphasis added) (quoting
III. Conclusion
For the foregoing reasons, the motion for a preliminary injunction is granted. The Court enjoins the implementation and enforcement of the January 20, 2025 Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.” A separate order follows.
Date: February 5, 2025
Deborah L. Boardman
United States District Judge