First Circuit Denies Trump Administration Motion for Stay of Universal Injunction Against Birthright Citizenship Executive Order
Today the U.S. Court of Appeals for the First Circuit rejected the Trump Administration’s motion for a stay pending appeal of a district court’s universal preliminary injunction against enforcement of President Trump’s Executive Order curtailing birthright citizenship. Other circuit courts have similarly ruled.
Interestingly enough, the Department of Justice did not try to argue that it was likely to prevail defending the merits of the Executive Order. Rather, the government’s briefs maintained that it was likely to prevail challenging the standing of the state plaintiffs. The court did not accept this argument however.
Chief Judge David Barron wrote for the panel. From his opinion:
The Government expressly declines to make any developed argument that it is likely to succeed on appeal in showing that the Executive Order is either constitutional or compliant with 8 U.S.C. § 1401. Nor does the Government contest that, for more than a century, persons in the two categories that the Executive Order seeks to prevent from being recognized as United States citizens have been so recognized. Instead, the Government contends that it can make the requisite showing for a stay of the preliminary injunction even without developing an argument to us that the Executive Order is lawful and even though the enforcement of the Executive Order would dramatically break with the Executive Branch’s longstanding legal position and thereby disrupt longstanding governmental practices. See, e.g., Legis. Denying Citizenship at Birth to Certain Child. Born in the U.S., 19 Op. O.L.C. 340, 340-47 (1995). The Government’s chief contention in so arguing is that, as to the first Nken factor, it has made a “strong showing” that the Plaintiff-States likely lack standing both under Article III of the U.S. Constitution, see U.S. Const. art. III, § 2, cl. 1 (providing that the “judicial Power shall extend” to all “Cases” and “Controversies”), and under third-party standing principles. As we will explain, we conclude that, at least given its arguments in its stay motion, the Government has not made a “strong showing” to undermine the Pla
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