Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D. Mass.: Trump’s birthright citizenship EO preliminarily enjoined, (Feb 14, 2025)

By Kathleen Kapusta, J.D.

“What the Constitution has conferred neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away.”

Granting preliminary injunctions in a pair of consolidated cases challenging President Trump’s birthright citizenship Executive Order, a federal district court in Massachusetts found that both sets of plaintiffs established a strong likelihood of success on the merits of their underlying claims as 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.” As to irreparable harm, the court found the “loss of birthright citizenship—even if temporary, and later restored at the conclusion of the 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.” Although the court issued a more limited injunction for the first group of plaintiffs—an individual and two organizations—it found that other set of plaintiffs—18 states—were entitled to nationwide relief (Doe v. Trump, Nos. 25-10135-LTS and 25-10139-LTS (D. Mass. Feb. 13, 2025)).

Birthright citizenship EO. Not long after taking office, President Trump signed an EO titled “Protecting the Meaning and Value of the American Citizenship,” which identifies 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 their 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 it and the court consolidated the actions.

Standing. Before addressing the preliminary injunction factors, the court first determined that both sets of plaintiffs had standing to bring their alleged claims. As to the state plaintiffs, they pointed to various forms of federal funding that would be diminished as a direct result of the EO, which, said the court, was a concrete and imminent injury directly and fairly traceable to the EO. Noting that the defendants did not challenge the standing of the Doe plaintiffs, the court found the Trump Administration’s standing challenge failed.

Likelihood of success. Turning to the preliminary injunction factors, and specifically the “sine qua non of th[e] four-part inquiry,” the court found the likelihood of success on the merits weighed strongly in the plaintiffs’ favor. Pursuant to the Citizenship Clause “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.” These words, observed the court, which were chosen by the drafters and ratified by the states, bestow birthright citizenship broadly to persons born in the United States.

Subject to the jurisdiction thereof. While the parties disputed the meaning of the phrase “subject to the jurisdiction thereof,” the court noted that the U.S. Supreme Court, in its 1898 decision in United States v. Wong Kim Ark, meticulously reviewed the contours of citizenship under a number of sources and concluded that “subject to the jurisdiction thereof” was meant “to exclude, by the fewest and fittest words,” the following categories of persons: “children of members of the Indian tribes,” “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.” As to all other persons, “the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents,” applied.

Applying this longstanding and “fundamental rule of citizenship,” the Supreme Court held that the petitioner in Wong Kim Ark, who was 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.” Throughout the Supreme Court’s analysis, observed the court here, the availability of birthright citizenship “irrespective of parentage” was repeatedly emphasized.

Dicta? Though the Trump Administration acknowledged that it was bound by prior Supreme Court holdings, it argued that the bulk of the majority’s opinion in Wong Kim Ark was dicta, which could be disregarded. “That position reflects a serious misunderstanding at best—and a conscious flouting at worst—of the judicial process and the rule of law,” the court here wrote, noting that to “the extent the thorough analysis in Wong Kim Ark of the Fourteenth Amendment’s common-law foundations, the purpose and intent of its drafters, and its application during the first thirty years after its ratification can be called ‘dicta’ at all, it is undoubtedly the ‘considered’ and ‘authoritative’ sort that this Court is bound to apply.” The administration’s argument to the contrary, said the court, invites it “to commit legal error.”

That Congress incorporated the language of the Citizenship Clause into the Immigration and Naturalization Act (INA), which was passed more than 40 years after Wong Kim Ark, “cements the meaning of the disputed phrase and provides the plaintiffs an independent avenue to prevailing here,” said the court. Because the INA “uses the same language chosen by the Fourteenth Amendment’s drafters—words that had been studied in Wong Kim Ark decades earlier—the statute must be understood to have incorporated the Supreme Court’s interpretation of those words.”

Allegiance. The Trump Administration next argued that 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.” They contended, however, that allegiance derives from the status of a child’s parents. But the Citizenship Clause, the court observed, speaks only of the child. A child born in the United States, explained the court, is entitled to the government’s protection and bound to adhere to its laws. “This is true regardless of the characteristics of the child’s parents, subject only to the narrow exceptions identified in Wong Kim Ark. Allegiance, in this context, means nothing more than that.”

Social contract. Also rejected was the administration’s assertion that birthright citizenship requires “mutual consent between person and polity.” But the language of the Fourteenth Amendment, said the court, ensured that birthright citizenship applied to formerly enslaved persons who did not consent to come here or remain here. “Against this backdrop, it verges on frivolous to suggest that Congress drafted, debated, and passed a constitutional amendment, thereafter enacted by the states, that imposed a consent requirement necessarily excluding the one group of people the legislators and enactors most specifically intended to protect.”

Reside. The administration also argued that persons here with temporary visas retain “domiciles” in their native countries, and persons here without lawful status cannot establish a true “domicile” because they cannot “reside” in any state, and thus they remain outside the “jurisdiction” of the United States for Fourteenth Amendment purposes. This, however, explained the court, again shifted the focus away from the child and the location of birth to the parents and the status and duration of their presence in the United States. Further, observed the court, the word “reside” appears in the Citizenship Clause only in the phrase specifying that a person entitled to birthright citizenship becomes a citizen not only of the United States, but also of the state where they live. “The word ‘reside’ does not inject a ‘domicile’ requirement limiting the reach of the Citizenship Clause as a whole and justifying examination of the immigration status of a child’s parents.”

Irreparable harm. Turning to irreparable harm, the court explained that as to the Doe plaintiffs, “children born without a recognized or lawful status face barriers to accessing critical healthcare, among other services, along with the threat of removal to countries they have never lived in and possible family separation. That is irreparable harm.” Finding that the state plaintiffs also established irreparable harm, the court noted that their declarations showed they face unpredictable, continuing losses coupled with serious administrative upheaval.

Balance of harms and public interest. The final two factors also supported the plaintiffs’ requests for relief. Pointing out that children not yet born will be stripped of birthright citizenship constitutionally guaranteed to them, the court observed that “They will be deprived of a ‘title’ that is, as ‘Justice Brandeis observed,... superior to the title of President.’”

While the administration pointed to the Executive Branch’s discretion in matters of immigration, the court explained that this case was not about how “to manage the immigration system” but rather about the Constitution’s guarantee of citizenship by virtue of birth.

Scope of injunction. Finally, while both sets of plaintiffs asked the court to universally enjoin the defendants, the court found that as to the Doe plaintiffs, an injunction preventing the Trump Administration from implementing and applying the EO against them, or any member of either organization, was sufficient to protect them from harm during the pendency of this lawsuit.

The state plaintiffs, however, established harms stemming 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. As an example, the court noted that “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.”

Explaining injunctive relief limited to the state plaintiffs was inadequate, the court noted that as in the example, “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.” Accordingly, the court granted nationwide relief for the state plaintiffs.

Finally, the court, addressing the administration’s argument that it could not enjoin the President, explained that while the President signed the EO, no further action by him was described by the EO or predicted by the plaintiffs. Other officers and agencies within the Executive Branch, however, are responsible for implementing the EO, and it is their conduct that the plaintiffs were really seeking to restrain. Thus, said the court, “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 President, but not against the President himself.”

The case is Nos. 25-10135-LTS and 25-10139-LTS.

Judge: Sorokin, L.

Attorneys: Mirian Albert (Lawyers' Committee for Civil Rights and Economic Justice) for O. Doe, Brazilian Worker Center, and La Colaborativa. Brad P. Rosenberg, U.S. Department of Justice, for Donald J. Trump, U.S. Department of State, Marco Rubio, U.S. Social Security Administration, and Michelle King.

Companies: Brazilian Worker Center; La Colaborativa

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