Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—1st Cir.: Birthright citizenship EO properly enjoined in Massachusetts, New Hampshire cases, (Oct 6, 2025)

By Jason Albright, J.D.

“[I]it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright.”

The First Circuit affirmed in part preliminary injunctions against President Trump’s birthright citizenship Executive Order in two separate cases, finding that historical efforts to restrict birthright citizenship in the Unites States—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—have been rejected, once by the people through constitutional amendment in 1868 and once by the U.S. Supreme Court relying on that Fourteenth Amendment three decades later, and that even the denial of citizenship to Native American tribal members no longer persists, thanks to 8 U.S.C. § 1401(b), passed more than a century ago. In the first case, the court vacated the preliminary injunction to the limited extent that it may apply only to agency officials rather than the named agencies, and in the second, it vacated the injunction only to the extent that it ran against the President directly (Doe v. Trump, Nos. 25-1169 and 25-1170 (1st Cir. Oct. 3, 2025); New Hampshire v. Trump, No. 25-1348 (1st Cir. Oct. 3, 2025)).

Doe cases. Shortly after taking office, President Trump signed an Executive Order (EO) entitled “Protecting the Meaning and Value of the American Citizenship,” which identified two “categories of individuals born in the United States” to whom “the privilege of United States citizenship does not automatically extend.” Pursuant to the EO, a child falls within one of the identified categories if, at the time of the child’s birth, their father was neither a citizen nor a lawful permanent resident (LPR) of the United States, and their mother was (1) “unlawfully present in the United States,” or (2) lawfully but temporarily present in the United States “(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).” The EO directs federal departments and agencies to cease issuing or accepting “documents recognizing United States citizenship” for such individuals born after February 19, 2025.

The day after the EO issued, an individual plaintiff (Doe plaintiff), an expectant mother lawfully present in the United Stated through Temporary Protected Status, and two nonprofit associations that provide immigration-related assistance, sued, seeking equitable relief preventing the EO’s implementation. The next day, New Jersey and a group of 17 states, the District of Columbia, and San Francisco, brought a separate lawsuit challenging the EO. Both sets of plaintiffs sought to preliminarily enjoin the EO and the court consolidated the actions.

Massachusetts decision below. The Massachusetts district court granted both sets of plaintiffs' motions for preliminary injunctions on February 13, 2025, after concluding that the plaintiffs in both cases were “exceedingly likely” to succeed on their Citizenship Clause claims and claims under 8 U.S.C. § 1401(a), which codifies the Immigration and Nationality Act (INA), providing that “a person born in the United States, and subject to the jurisdiction thereof” “shall be [a] national[] and citizen[] of the United States.”

The government appealed to the First Circuit, seeking reversal of the preliminary injunctions.

Fourteenth Amendment. The appeals court observed that because all the children that the EO covers are “born... in the United States,” the dispute over the merits of the plaintiffs' claims depends ultimately on whether the children are “subject to the jurisdiction” of the United States, under the Fourteenth Amendment and 8 U.S.C. § 1401(a) at the time of their birth. The court found that they were.

Section 1401(a). First, the plaintiffs were likely to succeed on the merits in showing that the children the EO describes are entitled to birthright citizenship under 8 U.S.C. § 1401(a), which was enacted as part of the INA in 1952. Section 1401(a) provides, in relevant part: “a person born in the United States, and subject to the jurisdiction thereof” is a citizen of this country. The statute, the First Circuit found, “seeks to implement a constitutional provision in guaranteeing at least the constitutional minimum that the Citizenship Clause secures.” This was consistent with the same language as used in the Nationality Act of 1940, whose legislative history reflected that the proposed legislation, in providing that “[a] person born in the United States and subject to the jurisdiction thereof” “shall be... [a] citizen of the United States at birth,” was merely expressing “a statement of the common-law rule, which has been in effect in the United States from the beginning of its existence as a sovereign state” and which itself “accords with the [Citizenship Clause of] the [F]ourteenth [A]mendment.”

Finally, citing 8 U.S.C. § 1401(b), which extended citizenship to “person[s] born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe,” the court observed that the statutory scheme itself reflects an intent to “extend citizenship beyond the constitutional floor.” The court thus saw “no reason to conclude that Congress meant to hold § 1401(a) hostage to future interpretations of the Citizenship Clause that would narrow its scope from the scope that it was understood to have in 1952.”

Wong Kim Ark. In addition, according to the appeals court, the U.S. Supreme Court’s 1898 decision in United States v. Wong Kim Ark was consistent with this understanding of the Citizenship Clause. Wong Kim Ark involved a challenge to a writ of habeas corpus that had been granted to a young man who was born in San Francisco in 1873 to Chinese nationals who were permanently domiciled in San Francisco until their return to China in 1890. There, the Court concluded that the young man was correct that, at birth, he was a citizen of the U.S. under the Citizenship Clause. It found that “[i]n the forefront... of the fourteenth amendment..., the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.” And while the Court acknowledged that the Fourteenth Amendment's “main purpose doubtless was... to establish the citizenship of free negroes” denied in Dred Scott, it also emphasized that “the opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction.”

Finally, by way of summation, the Court in Wong Kim Ark concluded: “The real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases, -- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state, -- both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.”

Thus, concluded the First Circuit, Wong Kim Ark on its own also required rejection of the government’s contention that the plaintiffs are not likely to succeed on the merits of their claims under the Citizenship Clause. It was clear, concluded the First Circuit, that the High Court found that “subject to the jurisdiction thereof” was “a well-understood and carefully chosen phrase that ensured the Clause mirrored the ancient common law principle for determining nationality, while allowing for a single additional, peculiarly American exception pertaining to members of Native American tribes.”

Additional equitable factors. Finally, the appeals court found that the plaintiffs are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. The First Circuit agreed with the district court that “[t]he loss of birthright citizenship -- even if temporary and later restored at the conclusion of litigation -- has cascading effects” that will “very likely leav[e] permanent scars” on the child and their family, and that the government “is not irreparably harmed by an injunction issued to parties with Article III standing that bars enforcement of an unlawful executive order.”

New Hampshire case. In New Hampshire v. Trump, “largely for the reasons set forth in Doe v. Trump,” the appeals court affirmed in part a preliminary injunction that enjoined Trump and several federal agency defendants from enforcing the EO as against three membership-based nonprofit organizations asserting that they all have members whose children will be denied citizenship under it.

The cases are Nos. 25-1169 and 25-1170, and No. 25-1348.

Judge: Barron, D.

Attorneys: Mirian Albert (Lawyers for Civil Rights) for O. Doe, Brazilian Worker Center, and La Colaborativa. Leah Belaire Foley, U.S. Attorney's Office, for Donald J. Trump, U.S. Department of State, Marco Rubio, U.S. Social Security Administration, and Frank J. Bisignano.

Spencer Elijah Wittmann Amdur (American Civil Liberties Union Foundation) for New Hampshire Indonesian Community Support, League of United Latin American Citizens, and Make the Road New York. Drew C. Ensign, U.S. Department of Justice, for Donald J. Trump, U.S. Department of Homeland Security, Kristi Noem, U.S. Department of State, Marco Rubio, U.S. Department of Agriculture, Brooke L. Rollins, Centers for Medicare & Medicaid Services, and Mehmet Oz.

Companies: Brazilian Worker Center; La Colaborativa; U.S. Department of State; U.S. Social Security Administration; New Hampshire Indonesian Community Support; League of United Latin American Citizens; Make the Road New York; U.S. Department of Homeland Security; U.S. Department of State; U.S. Department of Agriculture; Centers for Medicare & Medicaid Services

Cases: RemediesDamages Procedure Immigration MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews GCNNews