Yesterday, in Washington v. Trump, the US Court of Appeals for the Ninth Circuit ruled that Donald Trump’s executive order denying birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas is unconstitutional. The court also upheld the district court’s nationwide injunction against the order. Prominent conservative Judge Patrick Bumatay dissented on the ground that the plaintiff state governments lack standing.
This is the first appellate ruling on the legality of Trump’s birthright citizenship order, though four federal district courts have previously ruled the same way. The majority opinion by Judge Ronald Gould does an excellent job of explaining why the order violates the Citizenship Clause of the Fourteenth Amendment, which grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” It effectively covers text, original meaning, Supreme Court precedent, and more. It’s a compelling demolition of the administration’s argument that people who illegally entered the US are not “subject to the jurisdiction” of the United States because they lack the proper “allegiance” and “domicile.”
I would add that, if illegal entry by parents excludes a child born in the US from birthright citizenship, that would also have excluded large numbers of freed slaves. As Gabriel Chin and Paul Finkelman have shown in an important article, the freed slaves whose children were covered by the Citizenship Clause included a large population that had entered the US illegally, by virtue of being brought in after the federal government banned the slave trade in 1808. This shows that illegal entry was not considered a barrier to being under US jurisdiction. Granting black former slaves citizenship was the main objective of the Citizenship Clause.
For more on the shortcomings of the “domicile” theory, see this guest post by Evan Bernick.
As a result of the Supreme Court’s ruling in Trump v. CASA barring nationwide injunctions, courts can no longer issue such injunctions merely because the government has engaged in large-scale nationwide illegality. But the Supreme Court nonetheless noted that nationwide remedies are permissible in cases where they are the only way to provide “complete relief” to the parties to the litigation. Here, the Ninth Circuit ruled that a nationwide injunction is the only way to provide complete relief to the plaintiff state governments, who otherwise stand to lose various federal grants and benefits allocated based on the number of citizens:
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….. To account for this, the States would need to overhaul their eligibility-verification systems for Medicaid, CHIP, and Title IV-E. For that reason, the States would suffer the same irreparable harms under a geographically-limited injunction as they would without an injunction.
These kinds of harms are probably only a small proportion of the losses the states would suffer from implementation of Trump’s executive order. But remedying them is still essential for purposes of providing complete relief.
In his dissenting opinion, Judge Bumatay does not consider either the constitutionality of Trump’s order, or the proper scope of the injunction. He instead argues the case should be dismissed because the state plaintiffs lack standing. He contends the harms from loss of federal funds and benefits are too unclear, speculative, and indirect.
I won’t try to go over the standing issue in detail. But, overall, I think the majority is more persuasive on this issue. It is indeed difficult to predict exactly how much money the states will lose if Trump’s order is implemented. Among other things, as Bumatay notes, it will depend in part on exactly how implementation works. But it is virtually certain they will lose at least some funds, and even a small amount of direct economic damage is enough to justify standing.
That said, the Supreme Court’s jurisprudence on state government standing is far from a model of clarity. Thus, I cannot be certain what will happen if this issue were to get to the Supreme Court.
I myself have long advocated for broad standing for both state and private litigants, including state governments advancing claims I oppose on the merits. It is vital that illegal federal policies not be immunized from challenge by arbitrary judicially created procedural rules. State standing is especially important in the aftermath of Trump v. CASA’s ill-advised evisceration of universal injunctions. States are often entitled to broader remedies than private litigants, given the greater scope of the harms they might suffer.
State standing may not be the only way to secure a universal remedy against Trump’s birthright citizenship order. In one of the other cases challenging it, a federal district court has granted a nationwide class action certification. Both this remedy and that upheld by the Ninth Circuit may well end up being reviewed by the Supreme Court when – as seems likely – it takes up the merits of the birthright citizenship litigation.
