O. DOE et al. v. DONALD J. TRUMP et al.; STATE OF NEW JERSEY et al. v. DONALD J. TRUMP et al.
Civil No. 25-10135-LTS; Civil No. 25-10139-LTS
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
February 13, 2025
SOROKIN, J.
February 13, 2025
SOROKIN, J.
In this pair of lawsuits, two groups of plaintiffs advance similar challenges to the
individuals born in the United States” to whom the EO says “the privilege of United States citizenship does not automatically extend,” then directs federal departments and agencies to cease issuing or accepting “documents recognizing United States citizenship” for such individuals born after February 19, 2025. Doe, Doc. No. 1-1 §§ 1-3.
Both groups of plaintiffs assert that the EO violates the Citizenship Clause of the
In opposing the requests for injunctions, the defendants assert an array of arguments, which the Court addresses briefly here and in detail below. For starters, each plaintiff has standing to sue, because the uncontested facts establish each would suffer direct injury from the EO‘s implementation. The plaintiffs are also likely to succeed on the merits of their claims. In a lengthy 1898 decision, the Supreme Court examined the Citizenship Clause, adopting the interpretation the plaintiffs advance and rejecting the interpretation expressed in the EO. The rule and reasoning from that decision were reiterated and applied in later decisions, adopted by Congress as a matter of federal statutory law in 1940, and followed consistently by the Executive Branch for the past 100 years, at least. A single district judge would be bound to apply that settled interpretation, even if a party were to present persuasive arguments that the long-established understanding is erroneous.
The defendants, however, have offered no such arguments here. Their three main contentions are flawed. First, allegiance in the United States arises from the fact of birth. It does not depend on the status of a child‘s parents, nor must it be exclusive, as the defendants contend. Applying the defendants’ view of allegiance would mean children of dual citizens and lawful permanent residents would not be birthright citizens a result even the defendants do not support. Next, the defendants argue birthright
Each of the defendants’ theories focuses on the parents, rather than the child whose citizenship is at stake. In so doing, these interpretations stray from the text of the Citizenship Clause. The
The plaintiffs have also satisfied the other preliminary-injunction factors. Each plaintiff faces irreparable harm, the defendants face none, and the public interest favors enjoining the EO. Accordingly, the plaintiffs in each case are entitled to an injunction preventing implementation of the EO. The individual and two associations who are plaintiffs in the earlier-filed action will be fully protected by an injunction limited to the individual and the members of the associations. The later-filed case, brought by eighteen states and two cities, requires a broader, nationwide injunction. Applying traditional equity principles, such relief is necessary because the record establishes that the harms these plaintiffs face arise not only from births within their borders, but also when children born elsewhere return or move to one of the plaintiff jurisdictions.
For these reasons, the plaintiffs’ motions are ALLOWED. This ruling, explained further below and memorialized in separate Orders issued concurrently with this Memorandum, is based on straightforward application of settled Supreme Court precedent reiterated and reaffirmed in various ways for more than a century by all three branches of the federal government.
I. BACKGROUND
Within hours of taking office, the President signed the EO, which he describes as “an integral part of [his] broader effort to repair the United States’ immigration system and to address the ongoing crises at the southern border.” Doe, Doc. No. 22 at 14. The EO, however, does not directly concern immigration; rather, it seeks to define the scope of birthright citizenship in the United States. In the section stating its purpose, the EO acknowledges that the Citizenship Clause and a section of the Immigration and Naturalization Act (“INA“),
The second section announces that it is “the policy of the United States that no department or agency” of the federal “government shall issue [or accept] documents recognizing United States citizenship” of children within the identified categories. Id. § 2. The stated policy “shall apply only to persons who are born” after February 19, 2025. Id. The EO expressly does not restrict the ability of U.S.-born children of LPRs to receive or use documents recognizing “their United States citizenship.” Id. Next, the EO directs 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” the EO, and that no one within any identified department “act[s], or forbear[s] from acting, in any manner inconsistent with” the EO. Id. § 3(a). The EO further requires “[t]he heads of all executive departments and agencies” to “issue public guidance” by February 19, 2025, regarding implementation of the EO. Id. § 3(b).
In a complaint filed the day the EO issued, an individual plaintiff and two nonprofit associations challenged its legality and sought equitable relief preventing its implementation. See generally Doe, Doc. No. 1. The individual plaintiff, proceeding under the pseudonym “O. Doe,” is “an expectant mother” who is lawfully present in the United States “through Temporary Protected Status” (“TPS“). Id. ¶ 13. Doe‘s husband, the father of the child due to be born next month, is neither a citizen nor LPR of this country. Id. The baby will be Doe‘s second child; her first, now seven years old, also was born in the United States. Doe, Doc. No. 11-1 ¶ 3.
Doe‘s co-plaintiffs are La Colaborativa and the Brazilian Worker Center, two membership organizations located in eastern Massachusetts who provide immigration-related assistance, among other services. Doe, Doc. No. 1 ¶¶ 14-15. Both organizations have members who are unlawfully present in the United States, some of whom “are either pregnant or plan to grow their families in the future.” Id.; see Doe, Doc. No. 11-2 ¶ 4; Doe, Doc. No. 11-3 ¶¶ 8-10. Though the present record does not conclusively establish where the organizations’ members live, counsel at the motion hearing suggested the Court could view the members as located “primarily” (though perhaps not exclusively) in Massachusetts. Mot. Hr‘g Tr. at 10, 76.3 Doe and the organizations’ members have submitted unrebutted declarations describing the harms they allege the EO will cause the children it targets, who will be treated as noncitizens lacking any recognized, lawful immigration status. See generally Doe, Doc. Nos. 11-1 to -3.
The day after Doe and her co-plaintiffs filed suit, New Jersey and a group of seventeen other states, along with the District of Columbia and San Francisco (collectively, “the State plaintiffs“), instituted a separate action also challenging the EO under provisions of the Constitution and other federal statutes.4 New Jersey,
the State plaintiffs filed a motion for a preliminary injunction supported by a memorandum and more than two dozen exhibits. New Jersey, Doc. Nos. 3, 5, 5-1 to -27. The exhibits include declarations by various representatives of state agencies describing financial and administrative burdens they anticipate will result from the EO. See, e.g., New Jersey, Doc. Nos. 5-2, 5-8, 5-14, 5-18 (describing impacts of EO on federal funding related to state health insurance programs, education, foster care, and hospital-based process for acquiring Social Security numbers at birth).
Both complaints name as defendants the President, the State Department, the Secretary of State, the Social Security Administration, and the Acting Commissioner of Social Security. The State plaintiffs also sued the United States, the Department of Homeland Security, the Secretary of Homeland Security, the Department of Health and Human Services, and the Acting Secretary of Health and Human Services.
On January 23, 2025, the Doe plaintiffs filed their own motion for a preliminary injunction, supporting memorandum, declarations, and other exhibits. Doe, Doc. Nos. 10, 11, 11-1 to -10. After hearing from the parties, the Court deemed the cases related to one another and set a consolidated briefing schedule. New Jersey, Doc. No. 71; Doe, Doc. No. 12. The defendants opposed both motions, challenging the State plaintiffs’ standing to sue, arguing no plaintiff has advanced a valid cause of action, and urging that the plaintiffs have not satisfied the test governing preliminary-injunctive relief. See generally Doe, Doc. No. 22. Both sets of plaintiffs replied. Doe, Doc. No. 33; New Jersey, Doc. No. 123. The Court heard argument from all parties on February 7, 2025.
II. DISCUSSION
Before addressing the factors governing requests for injunctive relief, the Court disposes of two preliminary challenges that the defendants suggest foreclose consideration of the merits of the plaintiffs’ motions. As the Court will explain, the defendants’ opening pair of procedural challenges, like their substantive arguments opposing the motions, wither in the face of settled and binding Supreme Court precedent.
A. Threshold Issues
1. Standing
The defendants first argue that the State plaintiffs lack standing to bring the claims alleged in their complaint. See New Jersey, Doc. No. 92 at 18-22. They are wrong.
The State plaintiffs easily meet this standard.5 Uncontested declarations from officials representing several State plaintiffs articulate various forms of federal funding that will be
diminished as a direct result of the EO. States receive federal funding to cover portions of services like health insurance, special education, and foster care in amounts that depend on how many “eligible” children receive such services. Citizenship is one component of eligibility for purposes of these programs. Pursuant to the EO, fewer children will be recognized as citizens at birth. That means the number of persons receiving services who are “eligible” under the identified federal programs will fall—and, as a direct result, the reimbursements and grants the State plaintiffs receive for these services will decrease. The reduction to such funding is a concrete and imminent injury directly and fairly traceable to the EO, redressable by the injunctive relief the State plaintiffs seek.
This is all the Constitution requires. Two decisions of the Supreme Court, both authored by Chief Justice Roberts, make the point. In 2023, the Chief Justice, joined by five other Justices, explained that Missouri had standing to challenge executive action discharging federal student loans, where a quasi-state agency stood to lose fees it would have collected for servicing the forgiven loans. Nebraska, 143 S. Ct. at 2366. A few years earlier, the Chief Justice conveyed the Supreme Court‘s unanimous conclusion that “at least some” states had standing to challenge executive action revising the United States census. New York, 588 U.S. at 767-68.6 The proposed changes at issue raised the likelihood that persons without lawful immigration status would be undercounted, and states faced reductions in federal funds allocated according to population. Id. The State plaintiffs here challenge the EO based on precisely the same sort of direct financial impacts. They have identified federal grants and reimbursements to which they
are entitled that will diminish under the EO. As in Nebraska and New York, therefore, the State plaintiffs have
Texas involved “novel” theories of standing and a “highly unusual” claim that the Executive Branch was not sufficiently vigorous in exercising its prosecutorial discretion. Id. at 681, 684. This case, however, concerns the bounds of citizenship guaranteed by the Constitution—not an area typically reserved for executive discretion. The theory of standing advanced by the State plaintiffs—direct financial harm—is ordinary.9 Texas simply does not aid the defendants here.
The defendants have not challenged the standing of Doe or her co-plaintiffs to sue—nor could they. Doe has plainly established injury, to herself and her unborn child, that is concrete, imminent, traceable to the EO, and redressable by the relief she seeks in this lawsuit. The same is true of the association plaintiffs, which provide services impacted by the EO and have described one or more members facing the same type of injury as Doe. See Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009) (requiring, for associational standing, “specific allegations establishing that at least one identified member had suffered or would suffer harm“); see also United Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 551-53 (1996) (describing test for associational standing).
Accordingly, the defendants’ standing challenge fails. All plaintiffs before the Court have satisfied
Next, the defendants assert the Court must deny the pending motions because no plaintiff has a valid cause of action under the Citizenship Clause or the identified federal statutes. This is meritless.
As Justice Scalia observed, “[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). Indeed, the Supreme Court has “long held that federal courts may in some circumstances grant injunctive relief” to prevent “violations of federal law” planned or committed by “state officers” or “by federal officials.” Id. at 326-27. The plaintiffs here ask the Court to do just that.10
Limitations that apply where plaintiffs seek damages, rather than equitable relief, have no bearing on the claims pending here. See New Jersey, Doc. No. 92 at 24 (citing DeVillier v. Texas, 601 U.S. 285, 291 (2024)). Nor can the defendants short-circuit this lawsuit by pointing to a narrow provision of the INA providing an avenue for a “national of the United States” to challenge discrete denials of rights or privileges. See id. (invoking
The defendants’ threshold challenges fail under clear Supreme Court precedent. The plaintiffs assert valid causes of action and have standing to pursue them. The Court, therefore, turns to the substance of the pending motions.
B. Preliminary Injunction Analysis11
The familiar standard governs the plaintiffs’ requests for interlocutory relief.
“The first two factors of the traditional standard are the most critical.” Nken v. Holder, 556 U.S. 418, 434 (2009). Courts consider them in tandem. See Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009) (noting “irreparable harm is not a rigid” factor, but rather “a sliding scale, working in conjunction with” the first factor); EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 743 (1st Cir. 1996) (“[W]hen the likelihood of success on the merits is great, a movant can show somewhat less in the way of irreparable harm and still garner preliminary injunctive relief.“). The third and fourth factors of the injunction test “merge when the Government is the opposing party.” Nken, 556 U.S. at 435.
Measured against these standards, the plaintiffs’ submissions support entry of the injunctions they seek, with only minor adjustments explained below.
1. Likelihood of Success
“The sine qua non of th[e] four-part inquiry” governing motions for preliminary injunctions is the first factor: “likelihood of success on the merits.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). This factor weighs strongly in the plaintiffs’ favor. The plain language of the Citizenship Clause—as interpreted by the Supreme Court more than a century ago and routinely applied by all branches of government since then—compels a finding that the plaintiffs’ challenges to the EO are nearly certain to prevail.
The Citizenship Clause speaks in plain and simple terms. “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.”
One phrase in the Citizenship Clause is at the heart of the parties’ disagreement. The constitutionality of the EO, and the success of the plaintiffs’ claims, turns on the meaning of “subject to the jurisdiction thereof.” To understand that phrase, however, this Court need look no further than United States v. Wong Kim Ark, 169 U.S. 649 (1898).12 In
Supreme Court meticulously reviewed the contours of citizenship under English and early American common law, under the 1866 Civil Rights Act and the
Applying this longstanding and “fundamental rule of citizenship,” the Supreme Court held that the petitioner—born in the United States to Chinese-citizen parents, who were living and working in the United States at the time of the child‘s birth, but who were prevented by law from naturalizing and eventually returned to China—was a citizen “by virtue of the [C]onstitution itself.” Wong Kim Ark, 169 U.S. at 652-53, 703-05. This holding followed “irresistibly” from the extensive analysis the majority articulated. Id. at 693. Throughout that analysis, the availability of birthright citizenship “irrespective of parentage” was repeatedly emphasized. E.g., id. at 690. The duration of the parents’ residency in the United States was not assessed, nor did laws preventing the parents from seeking naturalization influence the Court‘s determination of the petitioner‘s status. The question was resolved, for purposes of the Citizenship Clause, by the location of the petitioner‘s birth, and the inapplicability of the narrow exceptions to birthright citizenship that had been identified by the Court. Understood this way—indeed, the way all branches of government have understood the decision for 125 years—Wong Kim Ark leaves no room for the defendants’ proposed reading of the Citizenship Clause. Of course, the defendants can seek to revisit this long-settled rule of law, but that is a matter for the Supreme Court, not a district judge.
Lower federal courts are not merely obligated to apply the holdings of Supreme Court decisions; they also “are bound by the Supreme Court‘s ‘considered dicta.‘” United Nurses & Allied Prof‘ls v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020) (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)). “Carefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative when... badges of reliability abound.” United States v. Santana, 6 F.3d 1, 9 (1st Cir. 1993). If such a statement “bears the earmarks of deliberative thought purposefully expressed,” concerns an issue that was “thoroughly debated in the recent past,” and “has not been diluted by any subsequent pronouncement” of the Supreme Court, a lower federal court must adhere to it. Id.
To the extent the thorough analysis in Wong Kim Ark of the
Whether “holding” or “considered dicta,” the straightforward rule and limited exceptions identified in Wong Kim Ark and summarized above have been applied repeatedly and without hesitation, including by the Supreme Court and the First Circuit. For example:
- In Morrison v. California, despite statutes that then rendered Japanese persons “ineligible” for citizenship via naturalization, the Supreme Court stated without qualification: “A person of the Japanese race is a citizen of the United State if he was born within the United States.” 291 U.S. 82, 85 (1934).
- In Dos Reis ex rel. Camara v. Nicolls, the First Circuit described a person “born in Massachusetts” as having become “an American citizen, not by gift of Congress, but by force of the constitution,” despite his parents’ status as foreign nationals “never naturalized in the United States,” and despite his own “dual nationality” that led to his “service as a draftee in the Portuguese army.” 161 F.2d 860, 861-62 (1st Cir. 1947).
- In Kawakita v. United States, a person “born in this country in 1921 of Japanese parents who were citizens of Japan” was “a citizen of the United States by birth“—a status the person did not lose despite later committing treason by acts of cruelty undertaken while working at a Japanese camp for American prisoners during World War II. 343 U.S. 717, 720 (1952). See also Nishikawa v. Dulles, 356 U.S. 129, 131 (1958) (finding Japanese military service during World War II was basis for expatriation of U.S.-born citizen of Japanese-citizen parents only if service was voluntary); Hirabayashi v. United States, 320 U.S. 81, 96-97 (1943) (noting, in context of World War II, that tens of thousands of “persons of Japanese descent” living on Pacific coast “are citizens because born in the United States,” even though “under many circumstances” they also were citizens of Japan “by Japanese law“).
- In United States ex rel. Hintopoulous v. Shaughnessy, all members of the Supreme Court considered a child born to foreigners, both of whom had entered the U.S. with temporary permission but remained after their authorization expired, to be “of course[] an American citizen by birth,” despite the parents’ “illegal presence.” 353 U.S. 72, 73 (1957); see id. at 79 (reflecting dissent‘s agreement that the child was a citizen).
- In INS v. Errico, two different children “acquired United States citizenship at birth” despite their parents having gained admission to this country by misrepresenting material facts about themselves and thereby evading statutory restrictions on lawful immigration. 385 U.S. 214, 215-16 (1966).
- In INS v. Rios-Pineda, a unanimous Supreme Court viewed a child “born in the United States” as “a citizen of this country,” even though the father had entered the country “illegally” on his own and “returned to Mexico . . . under threat of deportation“; both parents had then “paid a professional smuggler . . . to transport them” across the border; and the father, when apprehended again, had failed to depart voluntarily “as promised.” 471 U.S. 444, 446 (1985).
- In Hamdi v. Rumsfeld, at least six Justices treated the petitioner as a citizen of the United States based on his birth in Louisiana, without even discussing his parents’ status (they were present lawfully but temporarily), despite the petitioner‘s active participation in a foreign terrorist organization. 542 U.S. 507, 510 (2004).15
- In Mariko v. Holder, a panel of the First Circuit considered a child “born in the United States” to be “a United State citizen” despite the parents’ concession that both of them “were here illegally” and therefore removable. 632 F.3d 1, 3, 8 n.4 (1st Cir. 2011).
- In Hasan v. Holder, a different panel of the First Circuit similarly viewed as “a U.S. citizen” a child born in California to foreign-national parents who had overstayed their nonimmigrant visas. 673 F.3d 26, 28 & n.1 (1st Cir. 2012).
This line of decisions—which is not limited to the cases described above—further undermines the defendants’ proposed interpretation.16
If that were not enough to find that the plaintiffs are likely to succeed on the merits (and it is), the fact that Congress incorporated the language of the Citizenship Clause into provisions of the INA passed more than forty years after Wong Kim Ark cements the meaning of the disputed phrase and provides the plaintiffs an independent avenue to prevailing here. In the INA, Congress conferred birthright citizenship via statute on several categories of individuals, the first of which is described using language mirroring the Citizenship Clause.
Because it uses the same language chosen by the
Here, the fundamental rule conveyed by the Citizenship Clause was clear
Beyond sidestepping Wong Kim Ark, the defendants urge the Court to read three specific requirements into the phrase “subject to the jurisdiction thereof.” The defendants contend these requirements are necessary to ensure adherence to the phrase‘s original meaning. None of these requirements, however, find support in the text itself or the cases construing and applying it. And, more importantly, each of them, if applied as argued, would prevent the Citizenship Clause from reaching groups of persons to whom even the defendants concede it must apply.
First, the defendants suggest the “jurisdiction” phrase is satisfied only by persons who owe the United States “allegiance” that is “direct,” “immediate,” “complete,” and “unqualified by allegiance to any alien power.” New Jersey, Doc. No. 92 at 27-28 (cleaned up). Certainly, allegiance matters. Various sources link the “jurisdiction” phrase and concepts of allegiance, including Wong Kim Ark. See, e.g., 169 U.S. at 654 (noting English common law provided citizenship to those “born within the king‘s allegiance, and subject to his protection“). The defendants veer off course, however, by suggesting allegiance must be exclusive, and that it derives from the status of a child‘s parents. If that were so, then the children of dual citizens or LPRs could not receive birthright citizenship via the
These anomalies are avoided by focusing on the allegiance of the child, not the parents. As noted earlier, the Citizenship Clause itself speaks only of the child. A child born in the United States necessarily acquires at birth the sort of allegiance that justified birthright citizenship at the common law. That is, they are born “locally within the dominions of” the United States
It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will be therefore unnecessary to investigate any other.
Founders Online, Citizenship, Nat‘l Archives (May 22, 1789), https://founders.archives.gov/documents/Madison/01-12-02-0115 [https://perma.cc/ZC4B-NS9R]. So, “allegiance” does not mean what the defendants think it means, and their first proposed rule founders.19
Next, the defendants seek to graft concepts of social-contract theory onto the “jurisdiction” clause of the
This argument fares even worse than the first. The
Finally, the defendants seek to transform the use of the term “reside” at the end of the Citizenship Clause into a basis for finding that the “jurisdiction” phrase eliminates any person without a lawful “domicile” in the United States. The defendants contend that persons here with temporary visas retain “domiciles” in their native countries, and persons here without
In sum, the defendants invite the Court to adopt a set of rules that work (except when they don‘t). None of the principles the defendants advance are sturdy enough to overcome the settled interpretation and longstanding application of the Citizenship Clause described above. Each principle, applied uniformly, would lead to unintended results at odds with the text, meaning, and intent of the
For all these reasons, the Court finds the plaintiffs are exceedingly likely to prevail on the merits of their constitutional and statutory claims. This conclusion would allow the plaintiffs to “show somewhat less in the way of irreparable harm.” Astra U.S.A., 94 F.3d at 743. That relaxed burden, however, is not essential, as the second factor also favors the plaintiffs strongly.
2. Irreparable Harm
The plaintiffs have supported their assertions of irreparable harm with numerous declarations detailing the imminent and damaging impacts they anticipate will flow from the EO. See Doe, Doc. Nos. 11-1 to -10; New Jersey, Doc. Nos. 5-2 to -21, -23.20 Upon review, the Court accepts and credits those declarations, which the defendants have not disputed or rebutted in any way. The declarations establish that the State plaintiffs do not stand to lose discrete amounts of one-time funds; they face unpredictable, continuing losses coupled with serious administrative upheaval. They have established irreparable harm.
As for the Doe plaintiffs, what is at stake is a bedrock constitutional guarantee and all of its attendant privileges. The loss of birthright citizenship—even if temporary, and later restored at the conclusion of litigation—has cascading effects that would cut across a young child‘s life (and the life of that child‘s family), very likely leaving permanent scars. The record
The plaintiffs in both cases have shown they are likely to suffer substantial and irreparable harm in the absence of a preliminary injunction. Thus, the two most important factors strongly favor the plaintiffs.
3. Balance of Harms and Public Interest
The final merged factors also support the plaintiffs’ requests for relief. On the plaintiffs’ side of the scales, there is a grave risk of significant and irreparable harm arising from the EO. Children not yet born will be stripped of birthright citizenship constitutionally guaranteed to them, as confirmed by settled law and practice spanning more than a dozen decades. They will be deprived of a “title” that is, as “Justice Brandeis observed, . . . superior to the title of President.” Tuaua, 788 F.3d at 301. And that harm will arise from an EO that is unconstitutional on its face—an assessment that has now been echoed by multiple federal courts in different jurisdictions. E.g., Prelim. Inj. Order at 6, N.H. Indonesian Cmty. Support v. Trump, No. 25-cv-38 (D.N.H. Feb. 11, 2025), ECF No. 79.
It is difficult to imagine a government or public interest that could outweigh the harms established by the plaintiffs here. Perhaps that is why the defendants have identified none. Instead, they point only to the Executive Branch‘s discretion in matters of immigration. New Jersey, Doc. No. 92 at 49. But this case is not about how “to manage the immigration system.” Id. It is about the Constitution‘s guarantee of citizenship by virtue of birth. When this right was enshrined in the
Though the government has waived any other arguments on these final factors by not developing them in their opposition memorandum, see Zannino, 895 F.2d at 17, the Court makes two more observations. First, the government has no legitimate interest in pursuing unconstitutional agency action; “it is always in the public interest to prevent the violation of a
The scales tip decisively toward the plaintiffs. Because all factors favor entry of injunctive relief, the Court ends by explaining the appropriate parameters of such relief.
C. Scope of Injunction
Both sets of plaintiffs ask the Court to universally enjoin the defendants from implementing the EO. That is, they seek an order that prevents the defendants from applying the EO not only to them—to Doe, to members of the plaintiff associations, and to the State plaintiffs—but at all, to anyone, anywhere. Orders like those the plaintiffs seek here have become “increasingly common” over the last twenty years. Dep‘t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (mem.) (Gorsuch, J., concurring in grant of stay); see generally Developments in the Law—District Court Reform: Nationwide Injunctions, 137 Harv. L. Rev. 1701, 1703-15 (2024) (quantifying rise in such injunctions and examining consequences). That trend raises meaningful concerns about the appropriate scope of a single district judge‘s equitable powers. See Trump v. Hawaii, 585 U.S. 667, 713-21 (2018) (Thomas, J., concurring) (examining reasons to be “skeptical that district courts have the authority to enter universal injunctions“).
Alluding to such concerns, the defendants urge the Court to enter relief that is limited in scope. New Jersey, Doc. No. 92 at 49-50. Though the defendants have not proposed specific terms, two of the limitations they urge merit consideration.23 First, the defendants argue “the Court should limit any relief to any party before it that is able to establish an entitlement to preliminary injunctive relief.” Id. at 50. As explained above, the Court has concluded all plaintiffs are so entitled. But that conclusion does not alone justify relief that is universal in scope. The Court still must confront the general principle that injunctive relief should be tailored to the parties before it. Cf. Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (noting “injunctive relief should be no more burdensome . . . than necessary to provide complete relief to the plaintiffs“). Here, the Court finds this principle leads to different results for the two sets of plaintiffs.
For Doe and the members of the two plaintiff organizations, the record before the Court does not demonstrate that universal relief is necessary to “provide complete relief to,” and protect the rights of, those parties. An injunction that prevents the defendants and their agents from
Different considerations arise as to the State plaintiffs. They have identified harms that do not hinge on the citizenship status of one child, or even of all children born within their borders. The harms they have established stem from the EO‘s impact on the citizenship status—and the ability to discern or verify such status—for any child located or seeking various services within their jurisdiction. For example, Massachusetts will suffer the identified harms not only if children born and living there are unlawfully denied citizenship, but also if a pregnant woman living in the northeastern part of the Commonwealth gives birth across the border in a nearby New Hampshire hospital, or if a family moves to Massachusetts from Pennsylvania (or any other state that has not joined this lawsuit) after welcoming a new baby. These examples illustrate why injunctive relief limited to the State plaintiffs is inadequate. In both, children born in states that are not parties to this lawsuit (such as New Hampshire and Pennsylvania) would theoretically lack birthright citizenship even after returning or moving to—and seeking various services in—a state that is among the plaintiffs here.
That result not only fails in providing complete relief to the State plaintiffs, but also risks creating a new set of constitutional problems. See Saenz v. Roe, 526 U.S. 489, 500-04 (1999) (identifying as component of “right to travel” protected by
Only one issue remains. The defendants assert the Court may not enjoin the President.24 New Jersey, Doc. No. 92 at 50. The Doe plaintiffs offer no response to this point, see generally Doe, Doc. No. 33, but the State plaintiffs disagree in a footnote citing instances where executive orders have been enjoined, see New Jersey, Doc. No. 123 at 15 n.8. Assuming without deciding that this Court is empowered to issue an injunction directly constraining the President‘s actions in any set of circumstances, nothing in the record suggests such relief is necessary here. The President has signed the EO. No further action by him is described by the EO or predicted by the plaintiffs. Other officers and agencies within the Executive Branch are responsible for implementing the EO, and it is their conduct that the plaintiffs really seek to restrain. Thus, for purposes of the preliminary injunction, the relief will be awarded against all other defendants besides the President, and against any other officers or agents acting on behalf of the
III. CONCLUSION
“What the Constitution has conferred neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away.” Nishikawa, 356 U.S. at 138 (Black, J., concurring). Here, the Constitution confers birthright citizenship broadly, including to persons within the categories described in the EO. Under the plain language of the Citizenship Clause and the
Accordingly, the plaintiffs’ motions (Doe, Doc. No. 10, and New Jersey, Doc. No. 3) are ALLOWED as described herein. Separate orders will issue in each case memorializing the preliminary injunctions entered by the Court.
SO ORDERED.
/s/ Leo T. Sorokin
United States District Judge