Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—9th Cir.: State plaintiffs likely to succeed in showing Trump’s birthright citizenship EO unconstitutional, (Jul 24, 2025)

By Kathleen Kapusta, J.D.

“The Defendants’ proposed interpretation of the Citizenship Clause relies on a network of inferences that are unmoored from the accepted legal principles of 1868.”

The states of Washington, Arizona, Illinois, and Oregon are likely to succeed on the merits of their claim that President Trump’s Executive Order purporting to remove the Fourteenth Amendment’s protections of birthright citizenship is unconstitutional, the Ninth Circuit ruled, explaining that the plain text and ordinary meaning of the Fourteenth Amendment, along with controlling precedent interpreting the Citizenship Clause, drafting history, and most post-ratification public understanding weigh in favor of their interpretation of the Citizenship Clause. After declining to exercise jurisdiction over the claims of the individual plaintiffs—expectant mothers—the court affirmed the district court’s determination that a universal preliminary injunction was necessary to give the states complete relief on their claims. Judge Bumatay concurred in part and dissented in part (State of Washington v. Trump, No. 25-807 (9th Cir. July 23, 2025)).

On January 20, 2025, President Trump issued Executive Order 14160, “Protecting the Meaning and Value of American Citizenship,” which purports to deny citizenship to the children born in United States territory of parents temporarily or unlawfully present in the United States. The following day, Washington, Arizona, Illinois, and Oregon sued, seeking a temporary restraining order, which the district court granted.

Lower court proceedings. Shortly after that, the individual plaintiffs filed a putative class action, the district court consolidated the cases, and both groups of plaintiffs moved for a preliminary injunction. The district court granted the injunction, enjoining the defendants from enforcing or implementing the EO on a universal basis.

Preliminary injunction. Around that same time, other courts throughout the country also enjoined implementation and enforcement of the EO through universal injunctions. The Supreme Court ultimately accepted review on the scope of the universal injunction and, in Trump v. CASA, Inc., held that the universal scope of the injunction was impermissible insofar as it was based on individual and associational plaintiff standing. The Court left open the question whether the universal injunction may be justified in order to give complete relief to the appellee states.

Shortly after that, the district court of New Hampshire provisionally certified a nationwide class of plaintiffs and issued a class-wide preliminary injunction.

Standing. Appealing the grant of a preliminary injunction here, the defendants first argued that the states lacked standing to challenge the EO. The Ninth Circuit, disagreeing, found the states sufficiently established that the loss of reimbursements, funding, and additional expenses that would be incurred by the development of a new system to determine eligibility are concrete and imminent injuries-in-fact, traceable to the EO, and redressable by an injunction. Rejecting the defendants’ contention that any economic losses would be “self-inflicted” because a state need not provide social services to an individual who is ineligible under the federal program unless it chooses to do so, the court noted that the states did not choose for the federal government to stop paying for these services, or to assume the costs that follow.

The court also rejected the defendants’ argument that recognizing standing here would violate the prohibition on parens patriae standing, explaining that the states were not asserting standing based on the rights of their citizens but instead were asserting injuries to their own pocketbooks that would be caused by enforcement of the EO.

Individual plaintiffs. As to the individual plaintiffs, the court declined to exercise its jurisdiction with respect to their action. At the time the lawsuit was filed they were a group of pregnant women who are noncitizens with pending applications for asylum who alleged their children would be denied citizenship due to the EO. Since then, however, one gave birth while the EO was enjoined, meaning her child was a citizen, while the other was due to give birth earlier this month.

Because the defendants contend that the EO does not have retroactive effect, if both individuals were to give birth before this opinion was published, there could be a mootness issue as to their claims, the court reasoned. Further, the court below did not certify the class. But to the extent the individual plaintiffs have live claims, they are covered by the class action certified by the district court of New Hampshire, said the appeals court, finding dismissal of the individual plaintiffs proper on those grounds.

Citizenship Clause. Addressing whether the states are likely to succeed on the merits of their claim that the EO violates the Fourteenth Amendment, the court turned to the text of the Amendment’s Citizenship Clause, which reads: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside.”

According to the states, the phrase “subject to the jurisdiction thereof” means “subject to United States authority and laws,” and exempts a small and well-defined group of people who are born in United States territory yet not subject to United States authority. They argued that because the EO attempts to exempt from citizenship persons who are both born in the United States and subject to United States authority, it violates the Citizenship Clause.

For their part, the court observed, the defendants “advance a novel interpretation of the phrase ‘subject to the jurisdiction thereof’ in which they contend that ‘jurisdiction’ refers not to the government’s authority but to ‘political jurisdiction,’ which they define as ‘a concept rooted in allegiance and protection.’” By their definition, the court noted, persons are only subject to the political jurisdiction of the United States if they “owe primary allegiance to the United States,” excluding “those persons [who] owe allegiance to a different sovereign.”

Ordinary meaning. Agreeing with the states’ interpretation, the court noted that, when the Fourteenth Amendment was adopted, jurisdiction in reference to nations was defined as the “[p]ower of governing or legislating; the right of making or enforcing laws; the power or right of exercising authority.”

Further, the Supreme Court, in its 1898 decision in United States v. Wong Kim Ark, addressed the meaning of the phrase “subject to the jurisdiction thereof” in holding that the Citizenship Clause stands for “the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of the parents[.]” “Since Wong Kim Ark was decided in 1898, and until this challenged Executive Order, the Judiciary, Congress, and the Executive Branch have consistently and uniformly protected the Citizenship Clause’s explicit guarantee of birthright citizenship regardless of the immigration status of an individual’s parents,” the Ninth Circuit stated. Surveying other High Court precedent, the appeals court found no hint at any requirement of “primary allegiance” or exclusive allegiance.

Other factors. After examining the historical background of the Fourteenth Amendment—including that birthright citizenship was derived from the English common law principle of jus soli, or citizenship determined by birthplace—its drafting history, and the post-ratification public understanding of the Amendment, the court found these factors all weighed in favor of the states’ interpretation of the Citizenship Clause. Thus, said the court, they were likely to succeed on the merits of their claim the EO violates the Citizenship Clause by denying citizenship to children who are born in the United States and “subject to the jurisdiction thereof.”

INA. For the same reasons, said the court, they are likely to succeed on the merits of their claim the EO violates the Immigration and Nationality Act (INA). The relevant provision, said the court, provides that “a person born in the United States, and subject to the jurisdiction thereof” is a citizen, and Congress made clear when enacting this statute that it was borrowing the statutory language from the Fourteenth Amendment.

Irreparable harm. Regarding the remaining preliminary injunction factors, the court found that the district court did not abuse its discretion in concluding that the states are likely to suffer irreparable economic injury on the basis that they will be denied federal reimbursements for medical care and social services provided to children no longer considered citizens under the EO and will incur substantial administrative costs associated with complying with the EO. Noting that the defendants are federal officials and agencies, the court explained that monetary damages are unavailable in this case.

Balance of equities/public interest. As to the balance of equities and public interest, the court pointed out that constitutional violations weigh heavily in favor of an injunction because “all citizens have a stake in upholding the Constitution.” Further, it observed, the rule of law is secured by a strong public interest that the laws “enacted by their representatives are not imperiled by executive fiat.”

Based on all this, the court affirmed the district court’s conclusion that the likely constitutional violations here weigh in favor of an injunction and that the defendants have “no legitimate interest in enforcing an Order that is likely unconstitutional and beyond its authority.”

Scope of injunction. Finally, the appeals court found that the district court did not abuse its discretion in issuing a universal injunction to give the states complete relief. Although the Supreme Court, in CASA, held that “federal courts lack authority to issue” universal injunctions, it acknowledged that, “[t]he complete-relief inquiry is more complicated for the state respondents,” and a universal injunction may be necessary “to provide the States themselves with complete relief.” Further, the appeals court observed, the Court left it to the lower courts to “determine whether a narrower injunction is appropriate.”

Here, the appeals court reasoned, states’ residents may give birth in a non-party state, and individuals subject to the EO from non-party states will inevitably move to the states. To account for this, the court observed, “the States would need to overhaul their eligibility-verification systems for Medicaid, CHIP, and Title IV-E. For that reason, the States would suffer the same irreparable harms under a geographically-limited injunction as they would without an injunction.” Accordingly, the court affirmed the district court’s grant of a universal injunction.

Partial concurrence and dissent. Judge Bumatay, concurring in part and dissenting in part, joined that part of the opinion that declined to reach the individual plaintiffs’ claims. He would have found, however, that the state plaintiffs had no standing at this time as they did not identify a cognizable sovereign interest and could not sue the federal government on behalf of their citizens. He also argued that their asserted pecuniary injuries were too speculative and contingent at this stage to constitute injuries in fact and that their alleged loss of federal reimbursements for public benefits is a self-inflicted injury that does not confer standing.

Because he contended that the court did not have jurisdiction to review the states’ claims at this time, he did not address the merits of those claims or the scope of the district court’s injunction.

The case is No. 25-807.

Judge: Gould, R.

Attorneys: Alyson Dimmitt Gnam, Office of the Attorney General, for State of Washington. Joshua Bendor, Office of the Arizona Attorney General, for State of Arizona. Alex Hemmer, Illinois Attorney General's Office, for State of Illinois. Derek Weiss, U.S. Department of Justice, for Donald J. Trump.

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