State of Washington v. Trump

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2025
• Docket: 25-807
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2025 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

STATE OF WASHINGTON; STATE OF No. 25-807 ARIZONA; STATE OF ILLINOIS; STATE D.C. No. OF OREGON; DELMY FRANCO 2:25-cv-00127-JCC ALEMAN; CHERLY NORALES CASTILLO; ALICIA CHAVARRIA LOPEZ, OPINION

Plaintiffs - Appellees,

v.

DONALD J. TRUMP; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; SOCIAL SECURITY ADMINISTRATION; UNITED STATES DEPARTMENT OF STATE; MARCO RUBIO, in his official capacity as United States Secretary of State; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; DOROTHY FINK, in her official capacity as Acting Secretary of United States Department of Health and Human Services; DOJ - UNITED STATES DEPARTMENT OF JUSTICE; PAMELA BONDI, Attorney General; UNITED STATES DEPARTMENT OF AGRICULTURE; GARY WASHINGTON, Acting Secretary of the United States Department of Agriculture; UNITED STATES OF AMERICA; KRISTI NOEM, in her official capacity as Secretary of Homeland Security; JEFF WU, Acting Administrator, Centers for Medicare and Medicaid Services; CENTERS FOR MEDICARE AND MEDICAID SERVICES; FRANK BISIGNANO, Commissioner of Social Security,

Defendants - Appellants.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Submitted June 4, 2025 Seattle, Washington

Before: Michael Daly Hawkins, Ronald M. Gould, and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Gould; Partial Concurrence and Partial Dissent by Judge Bumatay

GOULD, Circuit Judge:

Washington, Arizona, Illinois, and Oregon (“States”) and individual expectant

mothers (“Individual Plaintiffs”) challenge as unconstitutional Executive Order No.

14160 (“Executive Order”), which purports to deny citizenship to the children born

in United States territory of parents temporarily or unlawfully present in the United

States. See Protecting the Meaning and Value of American Citizenship, Exec. Order

No. 14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). The district court entered a universal

preliminary injunction which bars implementation of the Executive Order.

Defendants appeal, contending that the States lack standing to challenge the

Executive Order, that it was error to issue a preliminary injunction, and that the scope

2 25-807 of the injunction is overbroad.

We address whether the Executive Order is constitutional and valid. We

conclude that the Executive Order is invalid because it contradicts the plain language

of the Fourteenth Amendment’s grant of citizenship to “all persons born in the

United States and subject to the jurisdiction thereof.” We have jurisdiction under 28

U.S.C. § 1292(a)(1).

Because the Individual Plaintiffs are covered by a certified class action in

another federal court, 1 we decline to exercise jurisdiction over their claims and

dismiss them. But because State Plaintiffs have standing and are likely to succeed

in demonstrating that the Executive Order is unconstitutional, we affirm the district

court’s grant of a preliminary injunction and its determination that a universal

preliminary injunction is necessary to give the States complete relief on their claims.

I. FACTS AND PROCEDURAL HISTORY A The Fourteenth Amendment was adopted after the Civil War, in order to reject

and refute the holding of Dred Scott v. Sandford, 60 U.S. 393, 403 (1857), which in

substance held that slaves and descendants of slaves were not citizens of the United

States, and “to put citizenship beyond the power of any governmental unit to

destroy.” Afroyim v. Rusk, 387 U.S. 253, 263 (1967).

1 “Barbara,” et al. v. Trump, No. 25-cv-244-JL-AJ, 2025 WL 1904338 (D. N.H. July 10, 2025).

3 25-807 When the Fourteenth Amendment was ratified, whether birthright citizenship

applied to the children of noncitizens was still an open question. But the Supreme

Court answered that question in United States v. Wong Kim Ark, 169 U.S. 649

(1898). When the case was decided, Chinese nationals in the United States were not

permitted to become citizens. See Chinese Exclusion Act, ch. 126, § 14, 22 Stat. 58,

61 (1882). Chinese laborers could not re-enter the United States if they left. See

Scott Act, ch. 1064, 25 Stat. 504 (1888). Chinese laborers were also required to

obtain a certificate of residence, and non-laborer Chinese persons were subject to a

harsh presumption that they were unlawfully present. See Geary Act, ch. 60, 27 Stat.

25 (1892).

Against that backdrop, the Supreme Court considered the case of Wong Kim

Ark, a Chinese-American man who was denied reentry to the United States, despite

being born in the United States. Wong Kim Ark, 169 U.S. at 652–53. The Supreme

Court canvassed English common law, early American decisions, and citizenship’s

meaning to the Fourteenth Amendment’s drafters and then held 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[.]” Id. at 68, 692–93.

For that reason, although Wong Kim Ark’s parents would have been unable to

naturalize or even return to the United States, Wong Kim Ark acquired United States

citizenship “by birth within the United States.” Id. at 704–05. Since Wong Kim Ark

4 25-807 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.

B On January 20, 2025, President Trump issued an Executive Order titled

“Protecting the Meaning and Value of American Citizenship.” Exec. Order No.

14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). Section 1 of the Executive Order states

in relevant part,

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.

90. Fed. Reg. at 8449.

Section 2 states that it is the “policy of the United States” that no federal

department or agency shall issue documents recognizing such persons as United

States citizens or accept documents issued by state governments recognizing such

persons as citizens if they are born 30 days from the date the Executive Order was

issued. Id.

5 25-807 Section 3 directs the Secretary of State, Attorney General, Secretary of

Homeland Security, and 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 mandates that officials cannot “act,

or forbear from acting, in any manner inconsistent with this order.” Id. at 8449–50.

C The day after the President signed the Executive Order, the States filed a

complaint and motion for a temporary restraining order. The district court granted

the temporary restraining order. Shortly thereafter, the Individual Plaintiffs filed a

putative class action. The district court consolidated the cases, and the States and

Individual Plaintiffs filed a consolidated complaint. Each group of plaintiffs moved

for a preliminary injunction.

On February 6, 2025, the district court granted a preliminary injunction,

enjoining Defendants from enforcing or implementing the Executive Order on a

universal basis. The district court concluded that the States had standing and that

the Individual Plaintiffs’ standing was undisputed. On the merits, the district court

concluded that the Executive Order likely violates both the Constitution and the

Immigration and Nationality Act (INA). The district court also concluded that the

States would suffer “irreparable economic harm in the absence of preliminary

relief,” and that the Individual Plaintiffs faced the irreparable harm of “constitutional

infringement and the specter of deportation.” Finally, the district court concluded

6 25-807 that the balance of the equities and public interest strongly weighed in favor of

entering a preliminary injunction, because “the rule of law is secured by a strong

public interest that the laws ‘enacted by their representatives are not imperiled by

executive fiat.’” The district court granted a universal injunction after determining

that a geographically limited injunction would be ineffective to relieve the States’

financial and administrative burdens.

After the district court granted its injunction, other courts throughout the

country also enjoined implementation and enforcement of the Executive Order. See

Doe v. Trump, No. 25-cv-10135, 25-cv-10139, 2025 WL 485070, at *14–16 (D.

Mass. Feb. 13, 2025) (universal injunction); CASA, Inc. v. Trump, No. 25-cv-00201,

2025 WL 408636, at *16–17 (D. Md. Feb. 2, 2025) (universal injunction); N.H.

Indonesian Cmty. Support v. Trump, No. 25-cv-00038, 2025 WL 457609, at *6 (D.

N.H. Feb. 11, 2025) (injunction “with respect to any individual or entity . . . within

the jurisdiction of this court”). The Supreme Court accepted review on the scope of

the injunction and held that the universal scope of the injunction was impermissible

insofar as it was based on individual and associational plaintiff standing, leaving

open the question whether the universal injunction may be justified in order to give

complete relief to the appellee States. Trump v. CASA, Inc., 606 U.S. ____, No.

24A884, 2025 WL 1773631 (June 27, 2025). The district court of New Hampshire

has since provisionally certified a nationwide class of plaintiffs and issued a

7 25-807 classwide preliminary injunction, which it stayed until July 17, 2025, pending appeal

in the First Circuit. See “Barbara,” et al. v. Trump, No. 25-cv-244-JL-AJ, 2025 WL

1904338 (D. N.H. July 10, 2025).

II. STANDARD OF REVIEW A district court’s grant of a preliminary injunction, including the injunction’s

scope, is reviewed for abuse of discretion. Hecox v. Little, 104 F.4th 1061, 1073

(9th Cir. 2024). “A district court abuses its discretion if it rests its decision ‘on an

erroneous legal standard or on clearly erroneous factual findings.’” Am. Beverage

Ass’n v. City & County of San Francisco, 916 F.3d 749, 754 (9th Cir. 2019) (en

banc). Legal conclusions are reviewed de novo while factual findings are reviewed

for clear error. K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015).

III. STANDING

Because a “question of appellate jurisdiction must always be resolved before

the merits of an appeal are examined or addressed,” we first address the questions of

standing. In re Application for Exemption from Elec. Pub. Access Fees by Jennifer

Gollan & Shane Shifflett, 728 F.3d 1033, 1036 (9th Cir. 2013) (internal quotation

marks and citation omitted). “[S]tanding must be met by persons seeking appellate

review, just as it must be met by persons appearing in courts of first instance.”

Hollingsworth v. Perry, 570 U.S. 693, 705 (2013) (internal quotation marks and

8 25-807 citation omitted). “All that is needed to entertain an appeal” on an issue, however,

“is one party with standing.” Brnovich v. DNC, 594 U.S. 647, 665 (2021).

Under Article III of the United States Constitution, a plaintiff has standing if

the plaintiff can show (1) an “injury in fact” that is concrete and particularized and

actual or imminent, not hypothetical; (2) that the injury is fairly traceable to the

challenged action of the defendant; and (3) that it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision. Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560–61 (1992). Under this general rule, standing requires

a showing of injury, causation, and redressability. See id.

A. STATE PLAINTIFFS

The Supreme Court has held that a state has standing to bring suit where the

federal government’s action directly reduces the number of individuals that a state

entity serves, causing a loss of revenue that the state would have otherwise received

under an existing federal contract. See Biden v. Nebraska, 600 U.S. 477, 490 (2023);

see also Dep’t of Com. v. New York, 588 U.S. 752, 767–68 (2019) (finding standing

where the inclusion of a citizenship question was likely to lead to the undercounting

of the states’ populations, and that this undercounting would cause states to lose out

on federal funds distributed on the basis of state population); City & Cnty. of San

Francisco v. United States, 981 F.3d 742, 754 (9th Cir. 2020) (holding that states

had standing to challenge a DHS rule that would render immigrants likely to

9 25-807 participate in federal programs inadmissible and ineligible for permanent residence

status, thereby decreasing enrollment in public benefits and federal payments to the

states).

Here, the States contend that the Executive Order would cause them an

economic injury by defunding and requiring substantial changes to existing public

programs such as Medicaid, the Children’s Health Insurance Program (CHIP), Title

IV-E foster care, and Social Security Act (SSA)’s Enumeration at Birth program.

The States have presented evidence that more than 1100 infants born each month in

the Plaintiff States would be subject to the Executive Order. If those infants are

denied citizenship, they will be ineligible for federally-backed state-run programs

such as Medicaid, CHIP, and Title IV-E foster care. States generally do not receive

federal reimbursements based on services to individuals who do not have a lawful,

qualifying immigration status. The States accordingly allege that they will lose

millions of dollars of contracted reimbursements that they would otherwise receive.

Also, federal law requires the States to determine whether each resident served

by federal benefits is eligible. See, e.g., 42 U.S.C. § 1396b(v); 8 U.S.C. §§

1611(a)(c)(1)(B); 42 C.F.R. § 435.406. Because current State systems rely on birth

certificates, place of birth, or Social Security Numbers (SSNs) to determine

eligibility, the States contend that they will need to create new systems to determine

citizenship and maintain compliance with federal law. The States also contend that

10 25-807 they will lose “administrative fees” that they would otherwise receive under the

SSA’s Enumeration at Birth program. See Biden, 600 U.S. 489–90. State agencies

transmit birth data to the SSA to facilitate the assignment of SSNs, in exchange for

$4–5 per SSN from the SSA. If the SSA no longer issued SSNs to children subject

to the Executive Order, the States expect losses of $7,320–$38,129 per year.

Defendants argue these alleged losses are “incidental downstream economic

effects” that are too indirect to confer standing. Defendants rely on United States v.

Texas, 599 U.S. 670, 674 (2023), wherein the Supreme Court stated in a footnote

that when a state asserts that federal law or policy has only generated indirect effects

on state revenues or state spending, “the State’s claim for standing can become more

attenuated.” Id. at 680 n.3. Defendants also cite Washington v. FDA, 108 F.4th

1163, 1175–76 (9th Cir. 2024), in which we held that a state did not have standing

to challenge the FDA’s elimination of its in-person dispensing requirement for

mifepristone, because the state’s claimed increase in Medicaid costs was too

indirect.

We conclude that the States have shown that the loss of reimbursements,

funding, and additional expenses incurred by the development of a new system to

determine eligibility are concrete and imminent injuries-in-fact, traceable to the

Executive Order, and redressable by an injunction. We agree with the district court

that the automatic and direct effect of denying citizenship to children affected by the

11 25-807 Executive Order renders them ineligible for federal programs and for Social Security

Numbers, which results in a quantifiable loss of funding to the States. Nothing about

this pecuniary injury is speculative given that it is “certainly impending.” See

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). These losses are not an

“indirect” effect on state spending that relies on a chain of causation with multiple

links, or assumptions about the effects of medication, or the unpredictable actions of

third parties. Cf. Texas, 599 U.S. at 680 n.3; Washington, 108 F.4th at 1175–76.

Instead, as in Biden v. Nebraska, the direct effect of the challenged federal action is

to decrease the number of people for which the state will receive federal funding and

“administrative fees.” 600 U.S. at 477, 489.

Defendants’ contentions to the contrary are not persuasive. They suggest that

any economic losses would be “self-inflicted,” because the State need not provide

social services to an individual who is ineligible under the federal program unless

they so choose. However, it was not a voluntary choice by the States for the federal

government to stop paying for these services, or to assume the costs that follow. See

Dep’t of Com., 588 U.S. at 767 (finding that losing “out on federal funds that are

distributed on the basis of state population” was a “sufficiently concrete and

imminent injury to satisfy Article III”). And the Supreme Court in Biden v.

Nebraska found that Missouri had alleged standing, even though its financial injury

stemmed from its choice to service federal loans. See 600 U.S. 489–490.

12 25-807 Defendants also claim that the Executive Order does not require any changes to State

systems and does not “impose any penalty for failing to make them.” Although the

Executive Order does not on its face impose a duty on the States to change their

methods of determining federal eligibility, the States would nonetheless be required

to make these changes to comply with other federal laws. See, e.g., 42 U.S.C. §

1396b(v); 8 U.S.C. §§ 1611(a)(c)(1)(B); 42 C.F.R. § 435.406.

Defendants also argue that, even assuming that the States satisfy Article III,

recognizing standing here would violate the prohibition on parens patriae standing.

A “[s]tate does not have standing as parens patriae to bring an action against the

Federal Government.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458

U.S. 592, 61 n.16 (1982). To be sure, the Supreme Court has denied states’ attempts

to assert third-party standing as “thinly veiled attempt[s] to circumvent the limits on

parens patriae standing.” Haaland v. Brackeen, 599 U.S. 255, 295 n.11 (2023)

(stating that Texas claimed third-party standing “on behalf of non-Indian families.”);

see also Murthy v. Missouri, 603 U.S. 43, 76 (2024).

But the States here are not asserting standing based on the rights of their

citizens; instead, they assert injuries to their own pocketbooks that will be caused by

enforcement of the Executive Order. Unlike in Brackeen and Murthy, the asserted

pocketbook injuries are concrete, particularized, and traceable. Cf. Brackeen, 599

U.S. at 295–96 (“[T]hese alleged costs are not ‘fairly traceable’ to the placement

13 25-807 preferences, which ‘operate independently’ of the provisions Texas identifies.”);

Murthy, 603 U.S. at 75 (“The States have not identified any specific speakers or

topics that they have been unable to hear or follow.”).

Finally, Defendants contend that third-party standing limitations also bar

standing for State plaintiffs. Prudential limitations on federal court jurisdiction

dictate that: (1) a party must assert his or her own legal rights and interests, not those

of others; (2) the courts will not adjudicate “generalized grievances” (i.e. “abstract

questions of wide public significance”); and (3) a party’s claims must fall within

“the zone of interests to be protected or regulated by the statute or constitutional

guarantee in question.” See Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 474–75 (1982) (citations omitted);

see also Warth v. Seldin, 422 U.S. 490, 499 (1975) (a plaintiff “must assert his own

legal rights and interests”); Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (noting

that a constitutional claim should be brought by the person “at whom the

constitutional protection is aimed”). However, “[the Supreme Court] has allowed

standing to litigate the rights of third parties when enforcement of the challenged

restriction against the litigant would result indirectly in the violation of third parties’

rights.” Warth, 422 U.S. at 510.

We conclude that third-party standing limitations do not bar this action. The

Executive Order operates directly as to the States by preventing the States from

14 25-807 receiving funding and administrative fees that they would otherwise receive. In

addition, the Executive Order prohibits departments and agencies of the United

States from accepting documents issued by State governments purporting to

recognize United States citizenship for persons subject to the Executive Order. See

90 Fed. Reg. 8449. As a result, if the Executive Order is upheld, States will have to

modify their methods of determining United States citizenship and eligibility for

federal programs. The enforcement of the challenged government action against the

States thus results in the violation of third parties’ rights. See Warth, 422 U.S. at

510. We conclude that the States have standing to challenge the Executive Order as

violative of the Fourteenth Amendment’s Citizenship Clause.

B. INDIVIDUAL PLAINTIFFS

We decline to exercise our jurisdiction with respect to the Individual

Plaintiffs’ action and dismiss their claims. At the time that this lawsuit was filed,

the Individual Plaintiffs were a group of pregnant women who are noncitizens with

pending applications for asylum, representing a putative class of pregnant persons

and future children residing in Washington State. Defendants do not dispute their

standing. Individual Plaintiffs allege that their children would be denied citizenship

as a result of the Executive Order taking effect, and that that denial of citizenship

would cause loss to them of various federal benefits. We agree with the district court

15 25-807 that a denial of citizenship is a concrete and imminent injury-in-fact, traceable to the

Executive Order, and redressable by an injunction.

However, one of the Individual Plaintiffs has since given birth while the

Executive Order is enjoined, meaning that her child is now a citizen, while the other

Individual Plaintiff was due to give birth earlier this month. Because Defendants

claim that the Executive Order does not have retroactive effect, if both Individuals

have given birth before this opinion is published, there may be a question of

mootness as to the Individuals’ claims. Typically, if a district court certifies a class

before the class representative’s claim becomes moot, “mooting the putative class

representative’s claim will not moot the class action.” Pitts v. Terrible Herbst, Inc.,

653 F.3d 1081, 1090 (9th Cir. 2011). “But where, as here, the plaintiff's claim

becomes moot before the district court certifies the class, the class action normally

also becomes moot.” Slayman v. FedEx Ground Package Sys., 765 F.3d 1033, 1048

(9th Cir. 2014). Because the district court below did not certify the class, there

remains a question as to whether Individual Plaintiffs’ claims are moot, or whether

an exception to mootness applies. We decline to address that question, because we

determine that to the extent the Individual Plaintiffs have live claims, those claims

are covered by the class action certified by the district court of New Hampshire in

Barbara, and dismissal of the Individual Plaintiffs is proper on those grounds. “A

court may choose not to exercise its jurisdiction when another court having

16 25-807 jurisdiction over the same matter has entertained it and can achieve the same result.”

Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979).

The district court of New Hampshire certified a class that includes:

All current and future persons who are born on or after February 20, 2025, where (1) that person's mother was unlawfully present in the United States and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth, or (2) that person's mother's presence in the United States was lawful but temporary, and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth.

Barbara, 2025 WL 1904338, at *16. Individual Plaintiffs’ children undoubtedly are

encompassed by that class definition. Individual Plaintiffs’ claimed injuries on

appeal relate to the harm faced by their children: the prospect of removal and

separation from their families, the exclusion from legal immigration status if not

removed, the denial of lawful employment and educational opportunities, and the

deprivation of both constitutional and statutory rights. Moreover, both the class

certified in Barbara and the Individual Plaintiffs here seek an injunction of the

Executive Order on the basis that it violates the Fourteenth Amendment and the INA.

See id. at *1. There is no reason to believe that these claims will not be “fully and

vigorously litigated” by the Barbara class representatives. See Crawford, 599 F.2d

at 893. Because Individual Plaintiffs’ children can obtain relief for those injuries

through the class certified by the District Court of New Hampshire, and because

relief in this court may conflict with or circumscribe the flexibility of relief in that

17 25-807 other case, we decline to exercise our jurisdiction over the Individual Plaintiffs’

claims and proceed only with the State Plaintiffs’ claims.

IV. PRELIMINARY INJUNCTION A party is only entitled to a preliminary injunction if the party demonstrates

“[1] that [it] is likely to succeed on the merits; [2] that [it] is likely to suffer an

irreparable harm in the absence of preliminary relief; [3] that the balance of equities

tips in [its] favor, and [4] that an injunction is in the public interest.” Winter v.

NRDC, 555 U.S. 7, 20 (2008). “Likelihood of success on the merits is ‘the most

important’ factor; if a movant fails to meet this ‘threshold inquiry,’ we need not

consider the other factors.” California v. Azar, 911 F.3d 558, 575 (2018) (quoting

Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citation

omitted)). We first consider whether the plaintiffs are likely to succeed on the merits

of their claims. Upon determining that they are likely to succeed, we then proceed

to consider the remaining prongs of the Winter test.

A. MERITS

Plaintiffs contend that the Executive Order violates the Fourteenth

Amendment’s Citizenship Clause. They also contend that the Executive Order

violates the INA, 8 U.S.C. § 1401. We first address whether the Executive Order

violates the Citizenship Clause.

18 25-807 1. Fourteenth Amendment

The text of the Fourteenth Amendment’s Citizenship Clause explicitly 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.” U.S.

Const. amend. XIV, § 1, cl. 1. The parties dispute the meaning of “subject to the

jurisdiction thereof.”

Plaintiffs contend that the phrase “subject to 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. Because the Executive Order attempts to exempt from citizenship

persons who are both born in the United States and subject to United States authority,

Plaintiffs contend that it violates the Citizenship Clause.

Defendants, in contending that the Executive Order is constitutional, advance

a novel interpretation of the phrase “subject to the jurisdiction thereof.” They first

contend that “jurisdiction” as used in the Citizenship Clause does not refer to

“regulatory jurisdiction,” i.e., jurisdiction as defined by a government’s authority

and lawmaking power, but instead refers to “political jurisdiction,” which they

define as “a concept rooted in allegiance and protection.” By their definition, 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

19 25-807 a different sovereign.” They then contend that a person only owes such allegiance

to the country in which the person is permanently domiciled, and the domicile of a

child follows the domicile of the parent. They assert that because individuals present

temporarily or unlawfully in the United States cannot establish permanent domicile,

their children born on United States soil do not owe allegiance to the United States

and are not subject to its political jurisdiction.

a. Ordinary Meaning

We conclude that the text of the Fourteenth Amendment supports the

Plaintiffs’ interpretation. In interpreting the text of the Constitution, courts are

“guided by the principle that ‘[t]he Constitution was written to be understood by the

voters; its words and phrases were used in their normal and ordinary as distinguished

from technical meaning.’” District of Columbia v. Heller, 544 U.S. 570, 576 (2008)

(quoting United States v. Sprague, 282 U.S. 716, 731 (1931)). When the Fourteenth

Amendment was adopted, as it is today, “jurisdiction” was commonly used in

reference to the power of the courts, defined as “[t]he legal power or authority of

hearing and determining causes.” Noah Webster, An American Dictionary of the

English Language 732 (1865). But in reference to nations, “jurisdiction” was also

defined as the “[p]ower of governing or legislating; the right of making or enforcing

laws; the power or right of exercising authority;” and the “limit within which power

may be exercised,” or “extent of power or authority.” Id; see also Benjamin

20 25-807 Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English

Jurisprudence 671 (1879) (defining jurisdiction as “[t]he authority of government;

the sway of a sovereign power.”). This ordinary meaning of jurisdiction is consistent

with Plaintiffs’ interpretation of “subject to the jurisdiction thereof” as subject to the

laws and authority of the United States.

Defendants point to no contrary dictionary definitions that define jurisdiction

in terms of allegiance and protection. Indeed, they make no arguments about the

ordinary meaning of the Citizenship Clause at all. Defendants’ only argument based

on the text of the Citizenship Clause is that “subject to the jurisdiction” cannot

simply refer to “regulatory jurisdiction,” because that definition would render the

Citizenship Clause’s requirement of jurisdiction surplusage. They claim that the

United States has “exclusive and absolute” regulatory jurisdiction within its

territory, so that all children born in the United States are subject to its jurisdiction.

Id. They further contend that that definition does not explain why certain groups,

such as Native Americans and children of diplomats, were excluded from

citizenship.

Supreme Court precedent makes clear that reading “subject to the jurisdiction

thereof” to mean “subject to United States authority and laws” is not redundant. In

Wong Kim Ark, the Supreme Court directly addressed the meaning of the phrase

“subject to the jurisdiction thereof.” 169 U.S. 649. The Court stated that “[t]he real

21 25-807 object of” the dual requirements of birth in U.S. territory and being subject to United

States jurisdiction was, “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 . . . had been recognized exceptions to the fundamental

rule of citizenship by birth within the country.” Id. at 682.

The Court in Wong Kim Ark held that these “classes of cases” are not fully

subject to United States authority and laws, despite Defendants’ contentions to the

contrary. The Court, relying on Chief Justice Marshall’s opinion in Schooner

Exchange, said that while “[t]he jurisdiction of the nation within its own territory is

necessarily exclusive and absolute,” there are certain cases “in which every

sovereign is understood to waive the exercise of a part of that complete exclusive

territorial jurisdiction.” Id. at 683–684 (quoting Schooner Exch. v. McFaddon, 11

U.S. 116, 136 (1812)). When a hostile foreign power occupies United States

territory, the Court said that “[t]he sovereignty of the United States over the territory

[is], of course, suspended, and the laws of the United States could no longer be

rightfully enforced there[.]” Id. at 683 (quoting United States v. Rice, 17 U.S. 246,

254 (1819)) (emphasis added). With respect to the immunity of foreign ministers

from United States jurisdiction, “the immunity itself is granted by the governing

22 25-807 power of the nation to which the minister is deputed.” Id. at 685 (quoting Schooner

Exch., 11 U.S. at 138).

The Court contrasted these two groups with private individuals, who it stated

cannot be exempt from the jurisdiction of the country that they are in, because,

When private individuals of one nation spread themselves through another as business or caprice may direct . . . it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Id. at 685–86 (quoting Schooner Exch, 11 U.S. at 144) (emphasis added). The

Court’s primary concern, in distinguishing private individuals from the exempted

groups, was whether they were subject to the laws and enforcement power of the

United States. Because the Court in Wong Kim Ark reasoned that the words “subject

to the jurisdiction thereof” must be understood “in the same sense in which the like

words had been used by Chief Justice Marshall in the well known case of The

Exchange,” the Court must have understood the phrase to refer to the United States’s

ability to fully subject an individual to its laws. See id. at 687.

The Court in Elk v. Wilkins similarly exempted members of Indian tribes from

citizenship because they were not subject to the full regulatory authority of the

United States.2 112 U.S. 94 (1884). While the United States could deal with the

2 Congress later expanded citizenship to Native American children via statute. See 8 U.S.C. § 1401(b) (1924).

23 25-807 Tribes “either through treaties made by the President and Senate, or through acts of

Congress in the ordinary forms of legislation,” the Court in Elk recognized that,

“[g]eneral acts of Congress did not apply to Indians, unless so expressed as to clearly

manifest an intention to include them.” Id. at 100–01. This statement reflects the

unique position of the Tribes, which have sovereignty and are not subject to the full

regulatory jurisdiction of the United States. See, e.g., Haaland v. Brackeen, 599

U.S. 255, 310–313 (2023) (Gorsuch, J., concurring) (explaining that the Tribes have

inherent sovereignty and are free from state jurisdiction and control).

Accordingly, the Court in Elk said that members of Tribes were no more

subject to the jurisdiction of the United States “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.” 112 U.S. at 102. Regardless, the Court in Wong Kim Ark also held clearly

that “[t]he 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.” 169 U.S. at 682. Because the

Supreme Court has made clear that children of diplomats, children of invading

armies, and children of tribal members were understood not to be fully subject to

24 25-807 United States authority and laws, interpreting jurisdiction in accordance with its

ordinary meaning is not redundant.

b. Supreme Court Precedent

The argument that Supreme Court precedent supports Defendants’ reading is

similarly unavailing. First, Defendants’ claimed distinction between political

jurisdiction and regulatory jurisdiction is not supported by precedent. Both the

Supreme Court and our Court have used “political jurisdiction” to refer merely to

the United States’ lawmaking authority. See, e.g., Smith v. Turner, 48 U.S. 283, 422

(1849) (describing taxation as part of political jurisdiction); Chicago, R.I. & P. Ry.

Co. v. McGlinn, 114 U.S. 542, 546 (1885) (describing political jurisdiction as

involved in legislative power); Lake v. Ohana Mil. Cmtys., LLC, 14 F.4th 993, 1000–

01 (9th Cir. 2021) (equating political jurisdiction with “legislative . . . jurisdiction”).

Second, the Court did not hold or even hint that there was a requirement of

“primary allegiance” or exclusive allegiance in either Elk or Wong Kim Ark. To the

contrary, the Wong Kim Ark Court repeatedly equated allegiance merely with

obedience to the laws of the sovereign, saying that “[a]llegiance is nothing more than

the tie or duty of obedience of a subject to the sovereign under whose protection he

is . . . .” See, e.g., id. at 659–661 (quoting Inglis v. Sailors’ Snug Harbor, 28 U.S.

99, 155 (1830)). Under English common law, “[s]uch allegiance and protection

were mutual . . . and were not restricted to natural-born subjects and naturalized

25 25-807 subjects, or to those who had taken an oath of allegiance; but were predicable of

aliens in amity, so long as they were within the kingdom.” Id. at 655. Rather than

describe this allegiance as primary or exclusive, the Court characterized the

allegiance owed by foreign “individuals and merchants” as “temporary and local”

which was necessary to avoid “subjecting the laws to continual infraction.” Id. at

685 (quoting Schooner Exch, 11 U.S. at 144). The context of the opinion makes

clear that the Court did not view allegiance as a separate and unspoken requirement

of jurisdiction. Instead, it considered allegiance to be part and parcel of what

Defendants now label “regulatory” jurisdiction.

Third, the proposed requirement of “permanent domicile” in order to establish

political jurisdiction also finds no basis in the text of the Citizenship Clause or its

interpreting precedent. The Wong Kim Ark Court uses the phrase “permanent” only

in connection with domicile once, stating that although Wong Kim Ark’s parents left

the United States in 1890, they “were at the time of his birth domiciled residents of

the United States, having previously established and still enjoying a permanent

domicil[e] and residence therein at San Francisco.” Id. at 652. This statement

reflects the stipulated facts of the case, and the Court did not mention “permanent”

domicile in its interpretation of the Citizenship Clause. See id. at 652 (“The facts of

this case, as agreed by the parties are as follows . . . .”).

26 25-807 In its analysis, the Court said, “[e]very 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. But the Court

immediately continued:

It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides—seeing that, as said by Mr. Webster, when Secretary of State, in his Report to the President on Thrasher’s Case in 1851, and since repeated by this court, “independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.”

Id. at 693–94 (quoting 6 Daniel Webster, The Works of Daniel Webster 526 (1851)

(emphasis added)). It is clear from this quoted passage both that domicile did not

play a significant role in the Court’s analysis of the Citizenship Clause’s

requirements, and that the Court viewed political jurisdiction as equivalent to

obedience to the laws.

The text and ordinary meaning of the Citizenship Clause, as well as Supreme

Court precedent interpreting the Citizenship Clause, support the Plaintiffs’

interpretation that “subject to the jurisdiction thereof” means “subject to the laws

and authority of the United States.” By contrast, Defendants give no analysis of the

ordinary meaning of the Citizenship Clause to support their contention that

27 25-807 jurisdiction requires primary allegiance and permanent domicile, and the textual

links they offer based on the Supreme Court precedent cited above are unavailing.

c. Historical Background

We conclude that the historical background of the Fourteenth Amendment

also supports Plaintiffs’ interpretation. We look to the historical background of

Constitutional Amendments when they codify preexisting rights. See Heller, 554

U.S. at 592. Although the Fourteenth Amendment extended the right of citizenship

regardless of race, the Supreme Court concluded that it reaffirmed “the fundamental

principle of citizenship by birth within the dominion.” See Wong Kim Ark, 169 U.S.

at 675; see also id. at 688 (stating that the Fourteenth Amendment’s Citizenship

Clause is “declaratory of existing rights, and affirmative of existing law” and

“intended to allay doubts and to settle controversies which had arisen, and not to

impose any new restrictions upon citizenship”).

Birthright citizenship is derived from the English common law principle of

jus soli, or citizenship determined by birthplace. James C. Ho., Defining

“American” Birthright Citizenship and the Original Understanding of the 14th

Amendment, 9 Green Bag 367, 369 (2006); see also Wong Kim Ark, 169 U.S. at 655.

As the Court in Wong Kim Ark explained, all children born in England were

considered natural-born subjects, whether they were born by subjects or born by

28 25-807 those who had taken an oath of allegiance, or whether they were born by non-

subjects within the kingdom. Id.

Before the Fourteenth Amendment was adopted in 1868, the prevailing view

was that the United States adopted this idea of citizenship by birth within the

territory. 3 See, e.g., id. at 658; Lynch v. Clarke, 1 Sand. Ch. 583, 663 (N.Y. Ch.

1844) (“It is impossible to hold that there has been any relaxation from the common

law rule of citizenship by means of birth within our territory.”); Gardner v. Ward, 2

Mass. (1 Tyng) 244 (1805) (“I take it, then, to be established, with a few exceptions

not requiring our present notice, that a man, born within the jurisdiction of the

common law, is a citizen of the country wherein he is born.”); State v. Manuel, 20

N.C. (3 & 4 Dev. & Bat.) 144, 151 (1838) (“[A]ll free persons born within the State

are born citizens of the State.”); Munro v. Merchant, 28 N.Y. 9, 40 (1863) (assuming

that plaintiff “born in this state of non-resident alien parents . . . is prima facie a

citizen”); see also Michael D. Ramsey, Originalism and Birthright Citizenship, 109

Geo. L.J. 405, 410–12 (2020).

3 Enslaved individuals were often “ignored by the common law analysis,” see Legis. Denying Citizenship at Birth to Certain Children Born in the United States, 19 Op. O.L.C. 340, 342 n.7 (1995), and the citizenship of free black people before the Civil War was disputed and often determined in part by state law. See Martha S. Jones, Birthright Citizen: A History of Race and Rights in Antebellum America 25–34 (2018).

29 25-807 To contend that historical background supports their understanding that jus

soli citizenship required primary allegiance, Defendants rely heavily on the

international law treatises of Emmerich de Vattel, an 18th-century Swiss jurist. But

Vattel’s views on citizenship are plainly inconsistent with United States law and do

not support Defendants’ argument. In Vattel’s view, children of foreign permanent

residents born within the territory were not full citizens, which is inconsistent with

the American conception of birthright citizenship even under Defendants’

interpretation. See Emmerich de Vattel, The Law of Nations §§ 213, 214, at 102

(saying that foreigners who are permitted to stay in a country are “a kind of citizens

of an inferior order, and are united to the society without participating in all of its

advantages,” and because children “follow the condition of their fathers,” the

children of permanent residents would not be full citizens) (emphasis added). Vattel

recognized that his accounting of citizenship was not the case for all nations, noting,

“there are states, as, for instance, England, where the single circumstance of being

born in the country naturalizes the children of a foreigner.” Id. § 214, at 102.

Defendants also cite Justice Story’s view that a “reasonable qualification” to

birthright citizenship would be to exclude children of foreigners “abiding there for

temporary purposes.” Joseph Story, Commentaries on the Conflict of Laws, Foreign

and Domestic § 48 (1834). Although Justice Story may have thought this

qualification would be reasonable, he noted that “[i]t would be difficult, however, to

30 25-807 assert, that in the present state of public law that such a qualification is universally

established.” Id. Accordingly, Defendants cite no compelling historical source

asserting that primary allegiance or permanent domicile were required at common

law. Instead, the common law understanding of jurisdiction within the sovereign’s

territory, and the recognized immunities from it, are more consistent with Plaintiffs’

interpretation of the Citizenship Clause.

d. Drafting History

“It is dubious to rely on [drafting] history to interpret a text that was widely

understood to codify a pre-existing right, rather than to fashion a new one.” Heller,

554 U.S. at 589–99, 603–04. But to the extent that drafting history is relevant here

to any degree, we conclude that the drafting history favors Plaintiffs’ interpretation.

When Senator Howard introduced the amendment, he said that the Citizenship

Clause “will not, of course, include persons born in the United States who are

foreigners, aliens, who belong to the families of ambassadors or foreign ministers

accredited to the Government of the United States, but will include every other class

of persons.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Although the

amendment was a subject of fierce debate, the Senators did not dispute its meaning

as it pertained to the children of foreigners. In fact, Senator Cowan criticized the

proposed amendment precisely because it would base citizenship on the “mere fact

that a man is born in the country.” Id. at 2890–91. He opposed the proposed

31 25-807 amendment because it would grant birthright citizenship to the children of

noncitizens who he believed “owe [the United States] no allegiance [and] who

pretend to owe none.” Id. But even Senator Cowan acknowledged that like “a

sojourner,” such groups “ha[ve] a right to the protection of the laws.” Id. at 2890.

Senator Conness responded by arguing that given the small number of foreigners

and sojourners within the United States, Senator Cowan’s policy concern of granting

citizenship to these groups would not come to pass. Id. at 2891–92; id. at 2892

(stating that the amendment is a “simple declaration that a score or a few score of

human beings born in the United States shall be regarded as citizens of the United

States, entitled to civil rights, to the right of equal defense, to the right of equal

punishment for crime with other citizens”). Thus, the proponents of the amendment

did not contend that children of people who owe no allegiance to the United States

would not be granted citizenship but instead accepted this consequence. See id. at

2891 (“[C]hildren of all parentage whatever, born in California, should be regarded

and treated as citizens of the United States.”).

Defendants contend that Senator Trumbull, the drafter of the Civil Rights Bill,

equated “subject to the jurisdiction of the United States” with “owing allegiance

solely to the United States.” Id. at 2893–94. But he did so in the context of the

debate over tribal sovereignty, noting that Indian tribes “are not subject to our

jurisdiction in the sense of owing allegiance solely to the United States,” because

32 25-807 “[i]t is only those persons who come completely within our jurisdiction, who are

subject to our laws, that we think of making citizens.” Id. at 2893–94 (emphasis

added). The Senators recognized that as “quasi foreign nations,” Indian tribes and

tribal members were distinct from other noncitizens. See id. at 2890, 2894–95

(remarks of Senator Howard). And any understanding that the Citizenship Clause

required allegiance was most definitely not universal. Senator Cowan opposed the

Citizenship Clause because it would extend birthright citizenship to children of

“people who . . . owe [my state] no allegiance.” Id. at 2891. Senator Trumbull

confirmed that the text covers all persons “who are subject to our laws.” Id. at 2893.

Defendants rely heavily on the Civil Rights Act of 1866 and its legislative

history to contend that “subject to the jurisdiction thereof” requires sole loyalty to

the United States. But in contrast, we conclude that the legislative history of the

Civil Rights Act is not persuasive here. “It is always perilous to derive the meaning

of an adopted provision from another provision deleted in the drafting process.”

Heller, 554 U.S. at 590.

The Civil Rights Act of 1866 was passed two years before the ratification of

the Fourteenth Amendment and conferred citizenship on “all persons born in the

United States, and not subject to any foreign power.” Civil Rights Act of 1866, § 1,

ch. 31, § 1, 14 Stat. 27, 27 (1866). This language, of course, is not the language that

was ultimately adopted in the text of the Fourteenth Amendment. Concluding that

33 25-807 the Fourteenth Amendment affirms existing law and does not create new restrictions,

the Supreme Court in Wong Kim Ark noted, “any possible doubt . . . was removed

when the negative words of the Civil Rights Act, ‘not subject to any foreign power,’

gave way, in the Fourteenth Amendment of the Constitution, to the affirmative

words, ‘subject to the jurisdiction of the United States.’” 169 U.S. at 688. The

Framers of the Fourteenth Amendment decided not to use the language of the Civil

Rights Act of 1866, and “no act or omission of [C]ongress . . . can affect citizenship

acquired as a birthright, by virtue of the constitution itself, without aid of any

legislation.” Id. at 703. Stated another way, the language of Civil Rights Act of

1866 cannot modify the grant of birthright citizenship clearly and explicitly

conferred by the Fourteenth Amendment.

e. Public Understanding

Reinforcing our analysis above, we further conclude that the post-ratification

public understanding of the Fourteenth Amendment supports the Plaintiffs’

interpretation of the Citizenship Clause. “[T]he examination of a variety of legal

and other sources to determine the public understanding of a legal text in the period

after its enactment or ratification . . . is a critical tool of constitutional

interpretation.” Heller, 554 U.S. at 605.

As discussed extensively above, the Supreme Court’s interpretation of the

Citizenship Clause in Wong Kim Ark supports Plaintiffs’ interpretation, because the

34 25-807 Supreme Court there repeatedly equated jurisdiction with being subject to the laws

of the United States. See supra Sections IV.A.1.a, IV.A.1.b. Supreme Court

decisions since then have repeatedly reaffirmed that all private noncitizens are

subject to the jurisdiction of the United States while within its territory. In Plyler v.

Doe, the Supreme Court held that, for the purposes of the Equal Protection Clause,

“[u]se of the phrase ‘within its jurisdiction’ . . . confirms[] the understanding that the

protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who

is subject to the laws of a State, and reaches into every corner of a State’s territory,”

so the Equal Protection Clause applies to undocumented immigrants. 457 U.S. 202,

215 (1982). Because the Court in Wong Kim Ark stated that persons who are within

the jurisdiction of a state for the purposes of the Equal Protection Clause must also

be “subject to the jurisdiction” of the nation, 169 U.S. at 696, it follows that Plyler’s

holding reaffirms that all persons subject to the laws of the states are subject to the

jurisdiction of the United States.

Further, after Wong Kim Ark was decided, the Supreme Court has repeatedly

recognized that the children of undocumented immigrants are citizens if born within

the territory of the United States. See United States ex rel. Hintopoulos v.

Shaughnessy, 353 U.S. 72, 73 (1957) (stating that a child born to two illegally

present noncitizens was “of course, an American citizen by birth.”); INS v. Errico,

385 U.S. 214, 215 (1966) (stating that the child of two noncitizen parents who

35 25-807 fraudulently entered the United States “acquired citizenship at birth”); INS v. Rios-

Pineda, 471 U.S. 444, 446 (1985) (recognizing as United States citizen the child of

two noncitizens who were unlawfully present in the country).

The overwhelming majority of Executive Branch practice also supports

Plaintiffs’ interpretation. In 1871, the Secretary of State wrote that the Fourteenth

Amendment was “simply an affirmance of the common law of England of this

country,” and “[t]he qualification, ‘and subject to the jurisdiction thereof,’ was

probably intended to exclude the children of foreign ministers, and of other persons

who may be within our territory with rights of extra territoriality.” 2 Francis

Wharton, A Digest of the International Law of the United States, Ch. 7, § 183, at

394. In 1873, the Secretary of State wrote to the President, “The child born of alien

parents in the United States is held to be a citizen thereof and to be subject to duties

with regard to this country which do not attach to the father.” Opinions of the

Principal Officers of the Executive Departments and Other Papers Relating to

Expatriation, Naturalization, and Change of Allegiance 18 (Gov’t Printing Office

1873). In 1947, the Board of Immigration Appeals (BIA) concluded that a man born

in the United States to Polish parents, who returned to Poland at age three and served

in the Polish army, was nevertheless a United States citizen. Matter of S----, 2 I&N

Dec. 908, 909 (BIA 1947). In 1978, the BIA held that a man born on then-United

States territory to Mexican parents was born “subject to the jurisdiction” of the

36 25-807 United States, without regard for whether his parents intended or were permitted to

be domiciled in the United States and despite the fact that “[o]fficials . . . were not

aware that the [the land] was a part of the county,” and the United States did not

actually exercise its jurisdiction over the land. Matter of Cantu, 17 I&N Dec. 190,

193–98 (BIA 1978).

Perhaps most notably, in 1995 and 1997 the United States Department of

Justice Office of Legal Counsel (OLC) directly addressed the constitutionality of

legislation that would deny citizenship to children born to parents who were not

citizens or permanent residents. OLC reviewed the Citizenship Clause’s text,

history, and precedent, and concluded, for the same reasons we do today, that such

legislation would be “unquestionably” and “flatly” unconstitutional. Legis. Denying

Citizenship, 19 Op. O.L.C. at 341; Citizenship Reform Act of 1997 and Voter

Eligibility Verification Act: Hearing Before the Subcommittee on Immigration and

Claims of the House Committee on the Judiciary, 105th Cong., 1st Sess. 21 (June

25, 1997) (statement of Dawn E. Johnson, Acting Assistant Attorney General, Office

of Legal Counsel).

Defendants cite only a few post-ratification interpretations of the Fourteenth

Amendment that Defendants contend support their view. First, they cite a proposed

1874 bill that would have provided that “a child born within the United States of

parents who are not citizens and who do not reside within the United States . . . shall

37 25-807 not be regarded as a citizen thereof.” 2 Cong. Rec. 3279 (1874). The draft bill was

never enacted and represents only the view of a single member of a Congress. See

City & Cnty. of San Francisco v. USCIS, 944 F.3d 774, 797 (9th Cir. 2019) (stating

that legislative history of an unenacted bill is only probative “of the fact that

Congress chose not to codify [Defendants’] interpretation”).

As evidence of Executive Branch practice that they contend is consistent with

their interpretation of the Citizenship Clause, Defendants cite two passport denials

in 1885 and a Department of Justice report from 1910. But with respect to the

passport denials, both Secretaries of State relied on the assumption that a natural-

born United States citizen would lose birthright citizenship if their noncitizen parents

removed the child from the country while still a minor and the child did not reclaim

citizenship as an adult. See 2 Francis Wharton, A Digest of the International Law of

the United States, Ch. 7, § 183, at 397; id. at 399–400. The 1910 report presents a

different view, but the weight of the evidence is nevertheless in Plaintiffs’ favor.

Defendants even acknowledge the weight of the evidence, contending that the

Executive Order “address[es] the Executive Branch’s prior misinterpretation of the

Citizenship Clause.” But the fact that most Executive Branch interpretation is

contrary to Defendants’ interpretation is relevant evidence that Defendants’ novel

interpretation is incorrect. See Bankamerica Corp v. United States, 462 U.S. 122,

130 (1983).

38 25-807 The plain text and ordinary meaning of the Fourteenth Amendment,

controlling precedent interpreting the Citizenship Clause, drafting history, and most

post-ratification public understanding weigh in favor of Plaintiffs’ interpretation of

the Citizenship Clause.4 For that reason, we conclude that Plaintiffs are likely to

succeed on the merits of their claim that the Executive Order violates the Citizenship

Clause by denying citizenship to children who are born in the United States and

“subject to the jurisdiction thereof.”

2. Immigration and Nationality Act

For the same reasons, Plaintiffs are likely to succeed on the merits of their

claim that the Executive Order violates the Immigration and Nationality Act (INA).

8 U.S.C. § 1401(a) provides that “a person born in the United States, and subject to

the jurisdiction thereof” is a citizen. Congress made clear when enacting this statute

that it was borrowing the statutory language from the Fourteenth Amendment. To

Revise and Codify the Nat’y Laws of the United States into a Comprehensive Nat’y

Code: Hearings Before the Comm. on Immig. and Naturalization on H.R. 6127

Superseded by H.R. 9980, 76th Cong., 1st Sess., 38 (1940). A statute adopting

language from another source generally conveys the original source’s well-settled

4 Defendants also advance policy arguments to support their interpretation of the Constitution. “But as with most questions of law, the policy pros and cons are beside the point.” CASA, 2025 WL 1773631, at *13. The Executive Branch cannot “alter the [Constitution’s] text in order to satisfy [its] policy preferences.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002).

39 25-807 meaning. See, e.g., George v. McDonough, 596 U.S. 740, 746 (2022). And more

generally, a statute’s language is “interpret[ed] . . . in accord with the ordinary public

meaning of its terms at the time of its enactment.” Bostock v. Clayton County, 590

U.S. 644, 654 (2020). Because we conclude that the meaning of “subject to the

jurisdiction thereof” had been settled by the Supreme Court in Wong Kim Ark and

had been settled in public understanding at the time that the statute was enacted, see

supra Section IV.A.1, we likewise conclude that the Executive Order likely violates

the INA. Accordingly, Plaintiffs have shown a strong likelihood of success on the

merits both on their Constitutional Fourteenth Amendment claim and on their

statutory claim under the INA, satisfying the first prong [1] of the Winter

prerequisites to gain an injunction.

B. REMAINING PRELIMINARY INJUNCTION FACTORS

Plaintiffs must also show “[2] that [they are] likely to suffer an irreparable

harm in the absence of preliminary relief; [3] the balance of equities tips in [their]

favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at 20.

For the reasons that follow, we conclude that Plaintiffs have met their burden with

respect to the remaining factors.

1. Irreparable Harm

The irreparable harm analysis focuses on irreparability, “irrespective of the

magnitude of the injury.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir.

40 25-807 1999). The Plaintiff States urge a theory of economic harm. Economic harm is not

normally considered irreparable. L.A. Mem’l Coliseum Comm’n v. Nat’l Football

League, 634 F.2d 1197, 1202 (9th Cir. 1980). But we have held that economic harm

is irreparable when monetary damages are unavailable. Azar, 911 F.3d at 581; see

also City & Cnty. of San Francisco, 981 F.3d at 762.

The district court found that the State Plaintiffs 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 Executive Order and will incur substantial administrative costs associated

with complying with the Executive Order. We conclude that the district court did

not abuse its discretion.

Because Defendants are federal officials and federal agencies, money

damages are unavailable in this case. United States v. Testan, 424 U.S. 392, 400

(1976) (“In a suit against the United States, there cannot be a right to money damages

without a waiver of sovereign immunity. . . .”). Defendants nevertheless contend

that the costs incurred by the States could be “recovered through submission of

claims after final judgment or through the administrative procedures applicable to

those programs.” But Defendants do not explain how administrative procedures

would enable the States to receive reimbursements for the thousands of children who

will be declared ineligible for such reimbursements by the Executive Order. Nor do

41 25-807 Defendants address the States’ well-supported contention that the States would incur

costs of developing new systems to determine which children born in their territory

are citizens and which children are not. See Ledbetter v. Baldwin, 479 U.S. 1309,

1310 (1986) (Powell, J., in chambers) (harm is irreparable when “[t]he State will

bear the administrative costs of changing its system to comply” and is unlikely to

recover those costs in litigation). Because the denial of reimbursements and

administrative costs are economic injuries for which monetary damages are not

available, we conclude that the State Plaintiffs’ injuries are irreparable. See Azar,

911 F.3d at 581.

2. Balance of the Equities and Public Interest

When the government is a party, the final two factors merge. See Drakes Bay

Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). We have held that

constitutional violations weigh heavily in favor of an injunction, because “all

citizens have a stake in upholding the Constitution.” Hernandez v. Sessions, 872

F.3d 976, 996 (9th Cir. 2017) (quoting Preminger v. Principi, 422 F.3d 815, 822

(9th Cir. 2005)). For that reason, “[a] plaintiff’s likelihood of success on the merits

of a constitutional claim also tips the merged third and fourth factors decisively in

his favor.” Baird v. Bonta, 81 F.4th 1036, 1042 (9th Cir. 2023). Further, the rule of

law is secured by a strong public interest that the laws “enacted by their

42 25-807 representatives are not imperiled by executive fiat.” E. Bay Sanctuary Covenant v.

Trump, 9 F.3d 742, 779 (9th Cir. 2018) (cleaned up).

The balance of the equities may in certain cases tip in the government’s favor

where an injunction poses a substantial administrative burden on the government

and would delay the deportation of deportable immigrants not eligible for relief. See

INS v. Legalization Assistance Project of the L.A. Cnty. Fed’n of Labor, 510 U.S.

1301, 1305–06 (1993) (O’Connor, J., in chambers). But the federal government

“cannot reasonably assert that it is harmed in any legally cognizable sense by being

enjoined from constitutional violations.” Zepeda v. INS, 753 F.2d 719, 722 (9th Cir.

1983).

We affirm the district court’s conclusion that the likely constitutional

violations here weigh in favor of an injunction and that Defendants have “no

legitimate interest in enforcing an Order that is likely unconstitutional and beyond

its authority.” Defendants in their briefing contend that because the challenged

Executive Order “is an integral part of President Trump’s broader effort to repair the

United States’ immigration system and to address the ongoing crisis at the southern

border,” the Executive Branch would be irreparably injured by the delay in

implementing its policies that the preliminary injunction may entail. But the

preliminary injunction in no way prevents the Executive Branch from addressing

unlawful immigration and does not infringe on the Executive Branch’s power to

43 25-807 ensure that the laws are faithfully executed. Cf. INS, 510 U.S. at 1305–06 (a stay

order by Justice O’Connor concluded that the district court’s order “would impose a

considerable administrative burden on the INS” and would delay the deportation of

deportable noncitizens). In sharp contrast to INS, the preliminary injunction here

merely prevents the Executive Branch from denying citizenship to individuals who

are likely constitutionally entitled to citizenship. Because, as the district court

correctly concluded, the Executive Branch does not have a legitimate interest in

violating the Constitution, the Executive Branch has not shown that either the public

interest or the balance of equities tips in its favor.

V. SCOPE OF THE INJUNCTION

The scope of a district court’s preliminary injunction, like the grant of the

preliminary injunction itself, is reviewed for abuse of discretion. See Hecox, 104

F.4th at 1073. “A district court has considerable discretion in fashioning suitable

relief and defining the terms of an injunction,” and “[a]ppellate review of those terms

‘is correspondingly narrow.’” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d

970, 974 (9th Cir. 1991) (quoting Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250,

1256 n.16 (9th Cir. 1982)). However, injunctive relief “must be tailored to remedy

the specific harm alleged,” and “[a]n overbroad injunction is an abuse of

discretion.” Id.

44 25-807 As the Supreme Court recently held, “federal courts lack authority to issue”

universal injunctions. CASA, 2025 WL 1773631, at *13 (June 27, 2025). However,

“[t]he equitable tradition has long embraced the rule that courts generally ‘may

administer complete relief between the parties.’” Id. at *11 (quoting Kinney-Coastal

Oil Co. v. Kieffer, 277 U.S. 488, 507 (1928)) (emphasis added in CASA). The

Supreme Court 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.” See id. at *12. The Supreme

Court declined to take up that argument, leaving it to the lower courts to “determine

whether a narrower injunction is appropriate.” Id.

The district court below concluded that a universal preliminary injunction is

necessary to provide the States with complete relief. We conclude that the district

court did not abuse its discretion in issuing a universal injunction in order to give the

States complete relief. States’ residents may give birth in a non-party state, and

individuals subject to the Executive Order from non-party states will inevitably

move to the States. See U.S. Census Bureau, U.S. Dep’t of Com., Geographical

Mobility in the Past Year by Age for Current Residence in the U.S., Am. Cmty.

Survey, ACS 1-Year Estimates Detailed Tables, Table B07001,

https://tinyurl.com/mpau42e9. To account for this, the States would need to

overhaul their eligibility-verification systems for Medicaid, CHIP, and Title IV-E.

45 25-807 For that reason, the States would suffer the same irreparable harms under a

geographically-limited injunction as they would without an injunction. See supra

Section III.A.

This is so even if, as Defendants suggest, Defendants were enjoined to treat

children affected by the Executive Order who move to the States as eligible for

federally funded medical and social programs. Defendants did not raise this

proposed narrower injunction below. On that basis alone, we conclude that the

district court did not abuse its discretion, because the district court was not obligated

to consider an argument that the Defendants never raised. See Wilkins v. United

States, 598 U.S. 152, 158 (2023).

But even if Defendants had raised this argument below, it fails. Enjoining

Defendants to deem these children eligible for Medicaid, CHIP, or Title IV-E

services would not remedy the States’ administrative harms. The States are required

by federal law to verify the actual citizenship status of individuals for the programs

that they operate. See, e.g., 42 U.S.C. § 1396b(v); 8 U.S.C. §§ 1611(a), (c)(1)(B);

42 C.F.R. § 435.406. Because the Executive Order provides that “no department or

agency of the United States government shall issue documents recognizing United

States citizenship, or accept documents . . . purporting to recognize United States

Citizenship,” the States would be unable to verify the citizenship of children through

their established systems. See Protecting the Meaning and Value of American

46 25-807 Citizenship, Exec. Order 14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). This is no

surprise as the States’ relevant regulations are based on the longstanding premise of

nationwide birthright citizenship, the status quo ante litem. See Boardman v. Pacific

Seafood Group, 822 F.3d 1011, 1024 (9th Cir. 2016) (noting that the “purpose of a

preliminary injunction is to preserve the status quo ante litem”). Thus, the States

would be obligated to overhaul their existing systems for determining citizenship

and incur an administrative burden even if the injunction were narrowed as

Defendants suggest. Again, these are costs that are not recoverable in damages. See

Testan, 424 U.S. at 400; Ledbetter, 479 U.S. at 1310. It is impossible to avoid this

harm absent a uniform application of the Citizenship Clause throughout the United

States. For that reason, we conclude that the district court did not abuse its discretion

in issuing a universal preliminary injunction, and we affirm the injunction’s scope.

VI. CONCLUSION Article II of the Constitution establishes the scope of presidential powers. See

generally U.S. Const. art. II. The President has the power to issue executive orders

if they “stem either from an act of Congress or from the Constitution itself,” on

matters that fall within that scope established by Article II. Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). But one power that the President

was not granted, by Article II or by any other source, is the power to modify or

change any clause of the United States Constitution. Perhaps the Executive Branch,

47 25-807 recognizing that it could not change the Constitution, phrased its Executive Order in

terms of a strained and novel interpretation of the Constitution.5

The district court correctly concluded that the Executive Order’s proposed

interpretation, denying citizenship to many persons born in the United States, is

unconstitutional. We fully agree. The Defendants’ proposed interpretation of the

Citizenship Clause relies on a network of inferences that are unmoored from the

accepted legal principles of 1868. This runs the risk of “‘extrapolat[ing]’ from the

Constitution’s text and history ‘the values behind [that right], and then . . .

enforc[ing] its guarantees only to the extent they serve (in the courts’ views) those

underlying values.’” United States v. Rahimi, 602 U.S. 680, 710 (2024) (Gorsuch,

J., concurring) (quoting Giles v. California, 554 U.S. 353, 375 (2008)). We reject

this approach because it is contrary to the express language of the Citizenship

Clause, the reasoning of Wong Kim Ark, Executive Branch practice for the past 125

years, the legislative history to the extent that should be considered, and because it

is contrary to justice.

AFFIRMED

5 The Executive Order attempts to qualify and limit the plain language of the Constitution’s citizenship clause, which by its terms only says that a person born in the United States and subject to its jurisdiction is a citizen, by adding the notion that the person must be a child of a citizen or lawful permanent resident. The precise language of the Executive Order is set forth in the text above quoting section 1 of the Executive Order. See supra Section I.B.

48 25-807 FILED JUL 23 2025 State of Washington, et al. v. Trump, et al., No. 25-807 BUMATAY, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

For good reason, this case elicits strong reactions from all sides. Fewer

questions could be more important than deciding who is entitled to American

citizenship. And this is understandably so—citizenship in our country is worth

fighting for. And it’s also worth ensuring that it is only conferred on those legally

eligible to receive it. Despite, or perhaps because of, this, courts must be vigilant in

enforcing the limits of our jurisdiction and our power to order relief. Otherwise, we

risk entangling ourselves in contentious issues not properly before us and

overstepping our bounds. No matter how significant the question or how high the

stakes of the case—at all times, we must adhere to the confines of “the judicial

Power.” U.S. Const. art. III, § 2, cl. 1. Exceeding those limits—even to settle a

divisive issue—violates the Constitution.

Among the most profound innovations of our Constitution is our system of

separated powers—one that grants each branch of our government only limited

authority. The Founding generation understood this division was necessary to

preserve liberty and prevent tyranny. With their personal experience at the hands of

the British government—with its Star Chamber, arbitrary pronouncements, and other

abuses—they knew that concentrating too much authority in only a few hands

corrupts and threatens our freedoms. As a result, they established strict

constitutional guardrails to keep each branch in its lane. 1 A vital separation-of-powers limit on the judiciary is that we may only grant

party-specific relief. Under the constraints placed on lower courts by Congress, we

may order only the “sorts of equitable remedies traditionally accorded by courts of

equity at our country’s inception.” Trump v. CASA, Inc., 606 U.S. ___, 145 S. Ct.

2540, 2551 (2025) (simplified). For too long, this limit was ignored. All too often,

district courts have issued universal injunctions—mandating relief to both injured

plaintiffs and non-parties alike—as a matter of course. But, simply put, universal

injunctions “lack a historical pedigree” and “fall outside the bounds of a federal

court’s equitable authority under the Judiciary Act.” Id. at 2554. Indeed, runaway

universal injunctions conflict with the judicial role—encouraging federal courts to

“act more like a legislature by decreeing the rights and duties of people nationwide.”

United States v. Texas, 599 U.S. 670, 703 (2023) (Gorsuch, J., concurring). So the

Supreme Court has put an end to that practice.

To adhere to the separation of powers, then, federal courts must not grant an

injunction “broader than necessary to provide complete relief to each plaintiff with

standing to sue.” CASA, 145 S. Ct. at 2562–63. No longer can a single district court

judge casually enjoin the actions of the political branches everywhere against

everyone all at once. Now, plaintiffs must establish that a sweeping injunction is

truly necessary for “complete relief.” And that inquiry must be searching—requiring

the closest scrutiny to the plaintiff’s claimed injury. “[T]he broader and deeper the

2 remedy the plaintiff wants, the stronger the plaintiff’s story needs to be.” Id. at 2558

(quoting S. Bary & P. Miller, Getting into Equity, 97 Notre Dame L. Rev. 1763, 1797

(2022)). True, sometimes complete relief may incidentally benefit non-parties, as in

a public nuisance. See id. at 2557. But the key is that sweeping relief of that sort is

“by far the exception,” justified only when “it would be all but impossible to devise

relief that reaches only the plaintiffs.” Id. at 2565 (Thomas, J., concurring)

(simplified). Thus, we should approach any request for universal relief with good-

faith skepticism, mindful that the invocation of “complete relief” isn’t a backdoor to

universal injunctions. Otherwise, CASA would be a mere drafting exercise rather

than a binding precedent. And finally, it’s worth remembering that “complete relief”

functions not as a floor but as a ceiling—it’s not a “guarantee” but the “maximum a

court can provide.” Id. at 2558 (majority opinion). Equity sometimes demands that

courts grant less than complete relief.

Standing is another separation-of-powers mechanism to guard against judicial

overreach. Standing keeps courts in their place: deciding only concrete disputes

between an injured plaintiff and a defendant according to the law. Requiring an

injury in fact before exercising jurisdiction “prevent[s] the judicial process from

being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l.

USA, 568 U.S. 398, 408 (2013). Courts, then, can’t be used to strike down disfavored

laws on a whim. Instead, to invoke the judicial power, plaintiffs must establish actual

3 harm traceable to the law. Otherwise, we risk transforming the judiciary into the

“roving commission,” United States v. Hansen, 599 U.S. 762, 786 (2023) (Thomas,

J., concurring) (simplified), for the “free-floating review” of executive and

congressional action expressly rejected by the Founders, Moody v. NetChoice, LLC,

603 U.S. 707, 761 (2024) (Thomas, J., dissenting). The Founders left non-

particularized challenges to disfavored policy to the ballot box—not the courts.

And these two guardrails—party-specific relief and standing—must work in

tandem. We can’t tighten one but loosen the other. That would be like squeezing

one end of a balloon—it just pushes all the air to the other end. The net result is the

same—inflated power for the judiciary. So with our authority to issue universal

injunctions sharply curtailed, we must resist the temptation to expand our authority

by reflexively granting third-party standing, indulging speculative harms, or

allowing other jurisdictional end-runs. That concern is particularly acute in our

dealings with States because they are often “not directly subject to the challenged

policy” yet may seek wider-ranging redress than individual plaintiffs for “at most,

collateral injuries.” See CASA, 145 S. Ct. at 2566 (Alito, J., concurring). As

Justice Alito warned, lower courts must remain “conscientious[]” in applying third-

party standing doctrine, “including against state plaintiffs.” Id. Otherwise, we grant

States the power to “create a potentially significant loophole” evading the limits on

universal injunctions by artful pleading. Id. That’s why we must be “rigorous” in

4 our state-standing analysis if reaching the merits of the dispute would “force us to

decide whether an action taken by one of the other two branches of the Federal

Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819–20 (1997).

In these cases, courts should not intervene “unless obliged to do so in the proper

performance of our judicial function, when the question is raised by a party whose

interests entitle him to raise it.” Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (quoting Blair v.

United States, 250 U.S. 273, 279 (1919)). The separation of powers demands no

less.

With these principles in mind, I return to this case. On January 20, 2025, the

President issued an Executive Order directing the federal government to no longer

recognize the U.S. citizenship of children born in the United States to parents on a

temporary visa or unlawfully present in the country. See Protecting the Meaning

and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449.

(Jan. 20, 2025). The States of Washington, Arizona, Illinois, and Oregon (“State

Plaintiffs”) immediately challenged the Executive Order. Cherly Norales Castillo

and Alicia Chavarria Lopez (“Individual Plaintiffs”) also sued on behalf of their

then-unborn children, who wouldn’t receive U.S. citizenship under the Executive

Order. On February 6, 2025, the district court enjoined the enforcement and

5 implementation of the Executive Order on a universal basis. The United States

appealed.

I join Section III.B of the majority opinion in declining to reach the Individual

Plaintiffs’ claims. As the majority observes, it appears that both Individual Plaintiffs

have given birth, meaning their children are United States citizens—raising

mootness concerns. It’s also a good call to avoid potential conflict with the

overlapping class action pending in the District of New Hampshire. See Church of

Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 750 (9th Cir. 1979).

But in rigorously applying our standing doctrine, I conclude that State

Plaintiffs have no standing at this time. Absent a party with Article III standing, it’s

premature to address the merits of the citizenship question or the scope of the

injunction.

I respectfully dissent in part.

I.

State Plaintiffs Lack Standing

The federal government asserts that the State Plaintiffs lack standing to

challenge the Executive Order. In response, State Plaintiffs claim standing to protect

their sovereign and pecuniary interests. Neither ground establishes standing. First,

State Plaintiffs haven’t identified a cognizable sovereign interest, and they can’t sue

the federal government on behalf of their citizens. Second, State Plaintiffs’ asserted

6 pecuniary injuries are too speculative and contingent at this stage to constitute

injuries in fact. Third, State Plaintiffs’ alleged loss of federal reimbursements for

public benefits is a self-inflicted injury that doesn’t confer standing. Finally, Biden

v. Nebraska, 600 U.S. 477 (2023), doesn’t provide standing.

A.

No Sovereign or Third-Party Standing

State Plaintiffs first argue standing to bring this challenge based on their

“sovereign interests” or their ability to litigate constitutional claims that implicate

their residents’ individual rights.

State Plaintiffs’ first theory of standing is easy to dismiss. They assert a

“sovereign interest” in defending against regulation of “state citizenship.” Even if

such an interest exists, State Plaintiffs haven’t shown how the Executive Order

regulates state citizenship in any way. See Massachusetts v. Mellon, 262 U.S. 447,

482 (1923) (observing that States’ “sovereign rights” are not implicated if the federal

government does not “require the states to do or to yield anything”). By its express

terms, the Order only implicates the meaning of United States citizenship and only

directs action by federal executive agencies. And State Plaintiffs point to no

language in the Order that implicitly alters state citizenship. At most, they suggest

that deeming some of their residents not “subject to the jurisdiction” of the United

States might confer on those residents “some degree of immunity from state laws.”

7 Absolutely nothing in the Executive Order says that, nor has any party advanced that

view. So, while creative, this alleged injury is neither concrete nor imminent. This

theory easily fails.

State Plaintiffs’ next theory of standing seeks to vindicate the rights of their

citizens. Altering who is a United States citizen, they assert, might affect their

residents’ ability to vote in local elections, serve on juries, hold local office, and

become police officers. They also argue that they can challenge the Order based on

a “long history” of state and local government challenges to Executive Branch action

impacting individual rights. Try as they may to disclaim it, distilled down, these

arguments are no more than an assertion of third-party standing on behalf of their

citizens—also known as parens patriae. And it’s blackletter law that “[a] State does

not have standing as parens patriae to bring an action against the Federal

Government.” Haaland v. Brackeen, 599 U.S. 255, 295 (2023) (simplified). That

makes “th[is] issue open and shut.” Id.

Standing doctrine “strongly disfavors so‑called ‘third‑party standing.’”

William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev.

153, 157 (2023). Generally, a party “must assert his own legal rights and interests,

and cannot rest his claim to relief on the legal rights or interests of third parties.”

Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (simplified). The risks of relaxing

third-party standing are obvious: “the courts might be ‘called upon to decide abstract

8 questions of wide public significance even though other governmental institutions

may be more competent to address the questions and even though judicial

intervention may be unnecessary to protect individual rights.’” Id. (simplified).

Given large state populations and the broad interests they may seek to

vindicate, these concerns apply with greater force when States assert third-party

standing. Just as federal courts are not “roving commissions assigned to pass

judgment on the validity of the Nation’s laws,” Hansen, 599 U.S. at 786 (Thomas,

J., concurring) (simplified), neither are States anointed privileged litigants to

challenge disfavored federal government action. Like other parties, States must

show a cognizable harm to themselves—not just their residents—before invoking

federal court jurisdiction to challenge federal government policy. As the Court

recognized long ago, “[w]hile the state, under some circumstances, may sue [as

representatives of its citizens] for the protection of its citizens . . . it is no part of its

duty or power to enforce their rights in respect of their relations with the federal

government.” Mellon, 262 U.S. at 485–86. That’s because “it is the United States,

and not the state, which represents them as parens patriae.” Id. at 486.

Indeed, in our constitutional system, the People are sovereign and do not need

States to act as intermediaries. See Ann Woolhandler & Michael G. Collins, State

Standing, 81 Va. L. Rev. 387, 439 (1995) (arguing that the traditional “preference

for state-versus-individual actions over government-versus-government actions

9 enhanced the status of the individual as a rights-holder against government”);

Kowalski, 543 U.S. at 130 (considering “whether there is a ‘hindrance’ to the

possessor’s ability to protect his own interests” when deciding whether to allow

third-party standing). After all, the common law basis for parens patriae was the

need to protect those who could not protect themselves. See Alfred L. Snapp & Son,

Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600 (1982) (The royal prerogative

serves to protect those who “are legally unable, on account of mental incapacity,

whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of

themselves and their property.”) (quoting � J. Chitty, Prerogatives of the Crown 155

(1820)); 3 William Blackstone, Commentaries 47 (The King “is the general guardian

of all infants, idiots, and lunatics.”). Because our constitutional system enables

individuals to vindicate their own rights, courts should disfavor state third-party

standing.

The Supreme Court has a long history of upholding this principle. In South

Carolina v. Katzenbach, 383 U.S. 301 (1966), the Court held that South Carolina

lacked standing to challenge a federal statute that the State alleged violated its

citizens’ due-process rights. Because the State itself had no due process rights, it

could not raise its citizens’ rights “against the Federal Government, the ultimate

parens patriae of every American citizen.” Id. at 324. Next, in Brackeen, 599 U.S.

255, the Supreme Court held that Texas did not have standing to argue that a federal

10 statute violated its citizens’ equal-protection rights. Again, the Court held that a

State could not “assert third-party standing” to bring a suit when the State itself

“ha[d] no equal protection rights of its own.” Id. at 294, 295 n.11. And most

recently, in Murthy v. Missouri, 603 U.S. 43, 76 (2024), the Court held that Missouri

lacked standing to bring First Amendment claims against alleged federal government

censorship of its citizens on behalf of its citizens.

So State Plaintiffs’ assertion of standing to protect their residents collides with

third-party standing limitations. Though they couch it otherwise, we can’t ignore

“thinly veiled attempt[s] to circumvent the limits on parens patriae standing.”

Brackeen, 599 U.S. at 295 n.11. At bottom, State Plaintiffs’ concerns are their

residents’ rights and relationships with the federal government. But as the numerous

suits filed by individual plaintiffs nationwide against the Executive Order show,

individuals are themselves capable of remedying any alleged injury. Given this, we

must deny third-party standing for State Plaintiffs.

B.

Pecuniary Injuries Too Speculative and Contingent

State Plaintiffs next assert an array of pecuniary harms to their fiscs. First,

they claim that the Executive Order will reduce their share of federal reimbursements

from Medicaid, Children’s Health Insurance Program (“CHIP”), and Title IV-E

foster care services. Because only services provided to those with U.S. citizenship

11 or certain legal immigration statuses are eligible for reimbursement under these

federal programs, State Plaintiffs allege that they will not receive reimbursements

for services provided to children born to undocumented aliens or aliens with

temporary visas. Second, the States maintain that they will incur administrative

expenses to redesign their public assistance programs and retrain their staff to verify

citizenship under the Executive Order. If citizenship is no longer determined by

birth in the United States, State Plaintiffs surmise that they will need to design new

citizen-verification protocols, update their IT infrastructure, and instruct staff to

ensure compliance with federal assistance programs. Finally, the States contend that

they will lose processing fees from the Social Security Administration (“SSA”) for

transmitting birth-record data on U.S. citizens. Currently, the SSA pays State

Plaintiffs $4 to $5 in service fees for the data, which the agency uses to generate

Social Security numbers. State Plaintiffs fear they will stop receiving this funding

because some children born in their States will no longer be citizens under the

Executive Order.

But all these projected injuries suffer the same fatal defect. Because they sit

downstream of the Executive Order’s direct effects, they rely on speculation about

how the Order might be implemented and assumptions about how independent third

parties might react to its implementation. But “[a]ny prediction how the Executive

Branch might eventually implement” the Executive Order is “no more than

12 conjecture.” Trump v. New York, 592 U.S. 125, 131 (2020) (simplified). And so this

case “does not—at this time—present a dispute appropriately resolved through the

judicial process.” Id. (simplified).

1.

As stated above, we must rigorously enforce our Article III jurisdictional rules

when asked to interfere with the actions of the political branches. “A foundational

principle of Article III is that ‘an actual controversy must exist not only at the time

the complaint is filed, but through all stages of the litigation.’” Id. (simplified). So

plaintiffs must satisfy “[t]wo related doctrines of justiciability”—standing and

ripeness—to advance an Article III case or controversy. Id.

First, to show standing, plaintiffs must establish an injury in fact, causation,

and redressability. Speculation can’t be used to satisfy these requirements. The

injury in fact must be “concrete, particularized, and imminent rather than conjectural

or hypothetical.” Id. (simplified). Alleged injuries must be “impending” with some

“certain[ty];” the mere “possibl[ility]” of “future injury” is “too speculative for

Article III purposes.” Clapper, 568 U.S. at 409 (simplified). And the causation

requirement “rules out” standing based on “attenuated links,” such as “where the

government action is so far removed from its distant (even if predictable) ripple

effects that the plaintiffs cannot establish Article III standing.” FDA v. All. for

Hippocratic Med., 602 U.S. 367, 383 (2024). So “Plaintiffs cannot rely on

13 speculation about ‘the unfettered choices made by independent actors not before the

courts’” to claim standing. Clapper, 568 U.S. at 414 n.5 (simplified). The bottom

line—any asserted injury can’t be “too speculative or too attenuated.” All. for

Hippocratic Med., 602 U.S. at 383.

Second, plaintiffs must show the case is “ripe” for judicial intervention. A

claim that hinges on “contingent future events that may not occur as anticipated, or

indeed may not occur at all” is “not ripe for adjudication.” Texas v. United States,

523 U.S. 296, 300 (1998) (simplified). When challenging federal actions, courts

often defer review until a concrete controversy crystallizes. That’s because

“[d]etermination of the scope” of a federal action “in advance of its immediate

adverse effect in the context of a concrete case involves too remote and abstract an

inquiry for the proper exercise of the judicial function.” Int’l Longshoremen’s &

Warehousemen’s Union, Loc. 37 v. Boyd, 347 U.S. 222, 224 (1954). This is

especially so when a case “require[s] guesswork as to how independent

decisionmakers will exercise their judgment.” Clapper, 568 U.S. at 413.

2.

State Plaintiffs’ allegations of pecuniary injuries are “riddled with

contingencies and speculation.” Trump, 592 U.S. at 131. Their theory of standing

requires us to swallow two big pills—(1) state standing based on speculative

assumptions about the indirect, downstream costs of federal government action; and

14 (2) state standing based on predictions about how a federal policy might be

implemented. Together, these concerns doom jurisdiction.

To begin, the Executive Order itself doesn’t directly withhold funding to the

States or require the States to expend any funds. And we should be skeptical of state

challenges to executive action premised on indirect fiscal effects. As the Court

recently told us:

[I]n our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts . . . that a federal law has produced only those kinds of indirect effects, the State’s claim for standing can become more attenuated.

Texas, 599 U.S. at 680 n.3.

In Texas, Texas and Louisiana advanced the same derivative-costs theory that

State Plaintiffs make here. The two States challenged new Department of Homeland

Security (“DHS”) Guidelines prioritizing the arrest of only certain undocumented

aliens. See id. at 673–74. To establish standing, they claimed that leaving more

undocumented aliens within their borders would force them to spend “more money

on law enforcement, incarceration, and social services.” Id. at 687 (Gorsuch, J.,

concurring). Even crediting those factual assertions, the Court found the alleged

injury “too attenuated” to support state standing. See id. at 680 n.3. After all,

15 contingent injuries, like those based on economic harms tied to predicted population

changes, will seldom amount to a cognizable Article III injury.

As Chief Judge Sutton asked in a similar context:

Are we really going to say that any federal regulation of individuals through a policy statement that imposes peripheral costs on a State creates a cognizable Article III injury for the State to vindicate in federal court? If so, what limits on state standing remain? Even though it “would make a mockery . . . of the constitutional requirement of case or controversy,” the States’ boundless theory of standing—in which all peripheral costs imposed on States by actions of the President create a cognizable Article III injury—would allow them to challenge a “disagreeable war.” Alexander Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79, 89–90 (1966). That is a bridge much too far.

Arizona v. Biden, 40 F.4th 375, 386 (6th Cir. 2022) (Sutton, C.J.) (simplified).

To Chief Judge Sutton’s concerns, I add my own. Taken to its logical

endpoint, the States’ theory would grant them standing to contest virtually any

federal action that might tangentially affect who lives or is born within their borders.

That’s because, according to State Plaintiffs, every person who crosses their borders

represents a monetary cost or benefit on their financial ledgers. Consider some

examples. If the President were to raise the annual refugee cap—does a State have

standing to sue because the presence of more aliens might someday increase state

expenditures on schools or emergency medical care? Or if Congress were to permit

nationwide over-the-counter access to hormonal birth control—does a State have

standing to sue because easier access could depress future birth rates, and thereby

reduce the accompanying SSA administrative fees? Indeed, why wouldn’t a State 16 have standing to challenge the removal of a single alien from within its borders given

the individual’s potential fiscal impact on the State? The Constitution’s case-or-

controversy requirement does not stretch so thin.

If bare conjecture that a federal action might marginally alter a State’s

population—and thereby its finances—were sufficient for standing, the injury-in-

fact prerequisite would mean little. States would be empowered to litigate every

national policy dispute under the guise of protecting their treasuries. Merely by

hypothesizing downstream fiscal effects, States could enjoy near-automatic access

to federal court while other litigants face exacting hurdles. Such asymmetry

threatens to convert States into de facto “general-public-interest plaintiffs,” drawing

Article III courts into political contests we were never meant to referee. Ann

Woolhandler & Michael G. Collins, Reining in State Standing, 94 Notre Dame L.

Rev. 2015, 2030 (2019). At a minimum, we should require costs to state treasuries

to be “directly traceable” to the federal government action to establish standing.

Biden, 600 U.S. at 490.

But these indirect effects aren’t the end of the story. Because the Executive

Order was essentially enjoined on day one, we don’t know how it will actually be

implemented. The Executive Order directs federal agencies to “issue public

guidance” within 30 days “regarding this order’s implementation with respect to

17 their operations and activities.” But the district court immediately enjoined any

federal agency from “[t]aking any further steps in reliance on the Executive Order,”

including providing any implementation guidance. Thus, nothing indicates the

government’s plan for enforcing the Order, and any prediction as to how it will do

so is merely a guess.

Courts are often reluctant to recognize standing or ripeness when a

government action is challenged too soon to understand its consequences. See, e.g.,

Trump, 592 U.S. at 132–34; Missouri ex rel. Koster v. Harris, 847 F.3d 646, 653 (9th

Cir. 2017) (concluding that “allegations about the potential economic effects” of a

law yet to be implemented “were necessarily speculative”). Predicting how a

presidential parchment setting a policy goal transforms into the mechanics of actual

government policy “involves a significant degree of guesswork.” Trump, 592 U.S.

at 132. Given that the government will eventually need to consider “both legal and

practical constraints, making any prediction about future injury just that—a

prediction.” Id. at 133. Recognizing standing and ripeness based on speculative and

contingent injuries risks premature interpretation of federal policy on a barebones

record.

State Plaintiffs’ claimed injuries depend on discretionary decisions that have

yet to be made, and so any assessment of their claims to standing can only be made

after further development. Allowing “the Executive Branch’s decisionmaking

18 process [to] run its course” would “bring[] more manageable proportions to the

scope of the parties’ dispute,” and supply the clarity essential to our review. Id. at

134 (simplified). Rather than breeze past our constitutional limits to get to the

merits, all this uncertainty requires restraint. Simply, that the Executive Order could

be administered in a way that harms State Plaintiffs does not establish that it will be

so administered. Nothing prevents the federal government from adopting measures

that would reduce or eliminate any projected costs to the States. But until those

discretionary choices are made, State Plaintiffs’ purported injuries remain “too

speculative” and “too attenuated.” All. for Hippocratic Med., 602 U.S. at 383. So

Article III demands we wait until the federal government provides its plans before

acting. If State Plaintiffs’ fears become concrete after implementation is announced,

federal courts will stand ready to fulfill their constitutional duty.

* * *

Based on these twin concerns—speculation on indirect, downstream costs and

assumptions about uncertain implementation—judicial intervention at this stage is

premature.

3.

Drilling down more closely on State Plaintiffs’ specific allegations confirms

that they are, at this time, too speculative and too contingent.

19 State Plaintiffs’ theory of fiscal injury begins from the premise that every child

denied citizenship under the Executive Order will likewise be categorically barred

from Medicaid, CHIP, and Title IV-E foster care benefits. But the Executive Order’s

“impact on funding is [un]certain.” Trump, 592 U.S. at 133. Each of these federal

programs extends not exclusively to U.S. citizens, but also to certain “qualified

aliens.” 8 U.S.C. § 1641(b). The Executive Order itself is silent on what

immigration status these children would receive. If they are granted lawful

permanent residence, parole, or another qualifying status, the federal benefits—and

the accompanying federal reimbursements—could remain available. See id. State

Plaintiffs also presuppose, again without support, that the federal government will

withhold every dollar of matching funds, that no other appropriations or grants will

offset the difference, and that private social-service groups will not fill any gaps in

coverage.

Thus, the Executive Order “will not inexorably have the direct effect on

downstream access to funds or other resources predicted by” State Plaintiffs. Trump,

592 U.S. at 133. How the Department of Health and Human Services (“HHS”),

DHS, and other federal agencies will address these issues is a “fundamental

uncertainty impeding proper judicial consideration at this time.” Id.

Nor do State Plaintiffs identify any evidence that federal agencies will

implement the Executive Order in the maximally punitive fashion they predict.

20 Washington, for example, suggests without evidence that it will lose pregnancy-care

reimbursements for undocumented women whose newborns will lack citizenship.

That is merely a guess.

State Plaintiffs also rely on demographic assumptions to allege these

pecuniary harms. They assume that the population of undocumented aliens in their

States will remain constant, that families will not relocate or repatriate, and that they

will seek coverage under the specified state programs. Whether any of this occurs

turns on a morass of independent variables, including interstate migration patterns,

economic cycles, immigration enforcement policies, future congressional

appropriations, and the discretionary policy choices of state, local, and federal

governments.

State Plaintiffs’ theory of “administrative burdens” fares no better. It depends

on a string of unsupported predictions: that HHS, SSA, and other relevant agencies

will immediately rewrite eligibility regulations, refuse to grandfather existing

processes, mandate immediate and costly system overhauls, and deny both

transitional funding and phased‑compliance periods. Yet federal agencies possess

ample discretion to soften any new requirements—by staggering effective dates,

supplying technical assistance, or fully subsidizing implementation—and the record

contains no indication that they will choose the most onerous path. In any event,

because the Executive Order by itself doesn’t direct States to alter their verification

21 systems, the expenses State Plaintiffs might elect to incur at this stage are “at least

partly within [their] own control,” and are neither imminent nor unavoidable. Lujan

v. Defs. of Wildlife, 504 U.S. 555, 564 n.2 (1992).

Finally, State Plaintiffs’ claimed loss of Social Security processing fees rests

on still another unsupported chain of speculation: that SSA will bar newborns

without U.S. citizenship from receiving Social Security numbers, that SSA will see

no value in continuing to receive the data supplied by State Plaintiffs, and that SSA

will withhold the processing fee. State Plaintiffs haven’t shown that SSA will refuse

to either assign Social Security numbers to non-U.S. citizens or compensate States

for transmitting birth-record data regardless of citizenship. See, e.g.,

20 C.F.R. § 422.104(a).

All this is too speculative and contingent to support jurisdiction over State

Plaintiffs’ claim at this stage. Article III doesn’t give courts license to game out

“what-ifs” or to indulge worst-case scenarios. State Plaintiffs’ fiscal projections rest

on a chain of speculative assumptions—hypothesizing the most punishing

implementation to inflict maximum financial loss. In short, every fiscal injury that

State Plaintiffs project depends on compounded assumptions about how multiple

independent actors—federal agencies, healthcare administrators, private social

services, and even individual parents—might respond to the Executive Order. The

alleged harms don’t flow from the Executive Order “in the abstract,” but rather from

22 whatever measures the federal agencies may eventually adopt to implement its

directive. Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). This is

insufficient for Article III jurisdiction.

Rigorous enforcement of the Article III requirement is indispensable. Without

it, federal courts would become a forum for any parties to air generalized grievances.

Even worse, federal judges would be transformed into “virtually continuing

monitors of the wisdom and soundness” of federal government action. Allen v.

Wright, 468 U.S. 737, 760 (1984) (simplified).

C.

Any Lost Reimbursement Would Be Self-Inflicted

In addition to being too speculative and contingent, any loss of federal

reimbursements for state assistance programs would not give rise to Article III

standing because it would be a “self-inflicted injur[y]”—“not fairly traceable to the

[federal government’s] purported activities.” See Clapper, 568 U.S. at 418. Even

if losses in federal reimbursements were to come to fruition, they would be caused

by State Plaintiffs’ own voluntary choices to extend benefits to aliens ineligible to

receive federal benefits. Simply, the “unilateral decision[] by a group of States” to

extend healthcare and other benefits to those not entitled to federal reimbursement

does not create a basis to attack the Executive Order because any “financial injury”

suffered would be “due to their own independent” decisions. FEC v. Cruz, 596 U.S.

23 289, 297 (2022). After all, State Plaintiffs “cannot manufacture standing merely by

inflicting harm on themselves[.]” Clapper, 568 U.S. at 416.

Pennsylvania v. New Jersey, 426 U.S. 660 (1976), tells federal courts to guard

against self-inflicted injuries by States. In that case, Pennsylvania gave its residents

tax credits for taxes paid to other States. In turn, New Jersey taxed income earned

by Pennsylvanians in New Jersey. The result—Pennsylvania lost tax revenue

because of New Jersey’s tax. Id. at 662–63. Pennsylvania then sued New Jersey.

The Court wasn’t sympathetic to Pennsylvania. “[N]othing prevent[ed]

Pennsylvania from withdrawing [its tax] credit for taxes [its residents] paid to

New Jersey,” according to the Court. Id. at 664. Thus, the “injuries to the [State’s]

fisc[] were self-inflicted, resulting from decisions by the[] . . . state legislature[].”

Id. So when a State can avoid lost revenue by changing its tax laws, that State lacks

standing to recoup the funds. Although Pennsylvania was a matter of original

jurisdiction, the Court later made clear its principle also applies to Article III

standing. See Cruz, 596 U.S. at 297.

State Plaintiffs complain that the Executive Order will cause them to lose

federal reimbursement for their social assistance programs. They identify several

state-funded programs—such as Medicaid, CHIP, and Title IV-E foster care—which

they say will be underfunded because of the Executive Order. But any unreimbursed

24 expenditures would be the result of the States’ choices to offer services to those

ineligible for reimbursement—not the Executive Order.

Take Washington’s “Apple Health” program. Apple Health is the umbrella

name for Washington’s medical assistance programs, which include the state-run

side of Medicaid and CHIP. Both federal programs reimburse States a certain

percentage of funds used to cover qualifying healthcare expenses. Historically, the

CHIP federal match has been about 65%. Under federal law, with some limited

exceptions, illegal aliens and those without a qualifying immigration status are not

eligible for Medicaid, CHIP, or other federal benefits. So federal reimbursement is

contingent on U.S. citizenship or another qualifying immigration status, such as

being a legal permanent resident. Despite those restrictions on federal

reimbursement, Washington decided to provide healthcare coverage to income-

qualified children “regardless of immigration status.” So while citizenship or lawful

immigration status is a prerequisite for Medicaid or CHIP reimbursement,

Washington volunteers to cover all children—even if they do not meet the

“immigration status requirements” for federal reimbursement.

This is a classic self-inflicted loss. Washington’s theory of injury is that the

Executive Order will lead to more non-U.S. citizens residing in the State, that the

State will need to provide healthcare benefits for those aliens, and that the federal

government will refuse to reimburse the State for those benefits. But the decision

25 to provide coverage to individuals regardless of immigration status was

Washington’s alone. See Wash. Rev. Code § 74.09.470. Indeed, just last year, in

2024, Washington chose to expand its medical assistance programs to

undocumented adults. See 2023–25 Supplemental Operating Budget, ch. 376,

§ 211(82)(a), 2024 Wash. Laws 1, 338–39. Presumably, State Plaintiffs would argue

that this brand new policy decision exacerbates their alleged injury.

Though States may extend their assistance programs to anyone they like, the

federal government’s refusal to reimburse them for a voluntary policy decision

would not create a cognizable injury. Put differently, had Washington not

independently chosen to cover undocumented aliens’ healthcare expenses, then the

Executive Order would not impact Washington’s reimbursements at all. The federal

government would continue to provide reimbursements for those who qualify. That

the State elects to service residents beyond those who qualify for federal

reimbursement makes its alleged injury directly traceable to Washington State—not

Washington, D.C.

Ultimately, “[n]othing in the challenged [Executive Order] required the

plaintiff States to offer [expanded healthcare benefits]; accordingly, the financial

injury those States [allege they will suffer is] due to their own independent” funding

decisions—not the Executive Order. See Cruz, 596 U.S. at 297 (citing

26 Pennsylvania, 426 U.S. at 664). And “[n]o State can be heard to complain about

damage inflicted by its own hand.” Pennsylvania, 426 U.S. at 664.

D.

Biden v. Nebraska Doesn’t Confer Standing

State Plaintiffs rely chiefly on Biden v. Nebraska to conclude that their

asserted pecuniary injuries support standing. They cite the case for the proposition

that when the federal government cuts the number of accounts a state entity serves—

and thereby decreases the federal funding or administrative fees to which the State

would otherwise be entitled under a contract or grant—the federal government

causes the State to suffer a concrete and direct injury. That may be a fine abstract of

Biden, but it’s far afield from the derivative injuries State Plaintiffs assert here.

Simply put, the alleged harms in Biden were the direct and inescapable result of

federal action and were in no way speculative or contingent.

Biden arose from the federal government’s attempt to forgive a wide swath of

student loans. See Biden, 600 U.S. at 487–89. In August 2022, the Department of

Education announced that it was issuing “waivers and modifications” under the

Higher Education Relief Opportunities for Students Act of 2003. See id. at 487. As

it turned out, these “waivers and modifications” amounted to a plan to forgive a

monumental sum of student debt. See id. The plan was “straightforward”—

borrowers with incomes below $125,000 would have their loans discharged up to

27 $10,000 per borrower. Id. at 488. Estimates projected 43 million borrowers eligible

for relief and cancellation of about $430 billion in debt principal. Id.

That impending loan cancellation set off alarm bells for Missouri. Years

before, Missouri had created the Missouri Higher Education Loan Authority

(“MOHELA”), an instrumentality of the State, to hold and service student loans. See

id. at 488–89, 490–91. MOHELA owned over $1 billion of loans. See id. at 489.

Further, it had contracted with the federal government to service nearly $150 billion

of federal loans—meaning that MOHELA would collect payments on those loans

and provide customer service to borrowers. See id. This was good business for

MOHELA, which received $88.9 million in administrative fees for the five million

federal accounts it serviced. Id. at 489–90. The loan-forgiveness plan would have

completely discharged “roughly half of all federal borrowers”—meaning

“MOHELA could no longer service those closed accounts.” Id. at 490. So if the

loan-forgiveness plan took effect, MOHELA would lose “$44 million a year in fees

that it otherwise would have earned under its contract with the Department of

Education.” Id. That “financial harm [was] an injury in fact directly traceable to the

Secretary’s plan.” Id.

The alleged injuries in Biden were certain and direct, not speculative or

contingent. Because the “terms of the debt cancellation plan [were]

straightforward,” there was no way MOHELA could escape unscathed—it was

28 going to lose $44 million a year as a direct result of the plan. Id. at 488, 490. That’s

not the case here. As discussed above, it’s speculative what effect the Executive

Order will have on the reimbursement and administration of Medicaid, CHIP, and

Title IV-E programs. Any fiscal impact would only be derivative of the Executive

Order’s implementation. And since the preliminary injunction went into effect

before the government had an opportunity to sketch out the specifics of the Executive

Order’s enforcement, a real possibility exists that the federal government may

mitigate any downstream consequences affecting these assistance programs. The

same goes for the SSA’s processing fees. Nothing stops the federal government from

continuing to collect birth data from the States or from continuing to pay processing

fees. On these contingent questions, the Executive Order is silent. So the Executive

Order by itself doesn’t command that States lose future downstream payments or

payouts.

Thus, while Biden supports the proposition that the loss of federal funding or

administrative fees can be a “direct” injury for standing purposes, that principle begs

the question of whether such a loss will occur at all. The more indirect and

derivative the costs, the more those injuries become speculative and contingent.

Picture it this way, a scraped knee is the predictable—and maybe even likely—

consequence of riding a skateboard. And once a child falls from his skateboard and

bloodies his knees, that child has suffered a “direct injury.” But no one would say

29 that the child was “injured” as soon as his parents gifted him the skateboard—no

matter how predictable the injury may have been. Likewise, the speculative and

contingent consequences of the Executive Order on federal funding and

administrative fees is worlds apart from the “straightforward” terms of the

cancellation plan in Biden—which clearly would have discharged “roughly half” of

the loans MOHELA serviced. Id. at 488, 490. In short, Biden does not control this

case because that case had nothing to do with Article III’s bar on speculative and

contingent injuries.

II.

Because we don’t have jurisdiction to review State Plaintiffs’ claims at this

time, I do not address their merits or the scope of the district court’s injunction.