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 Plaintiff-States’ standing in either respect. . . .
The Government relies principally in its stay motion on the analysis in a footnote in United States v. Texas, 599 U.S. 670, 680 n.3 (2023), concerning the attenuated nature of the injury there, to contend that the Plaintiff-States likely cannot show a pocketbook injury for purposes of Article III standing. The plaintiff-states in Texas — unlike the plaintiffs in Department of Commerce and Biden who successfully established their standing — did not allege that the challenged federal government action would result in their being denied federal funds to which they otherwise would be entitled. Id. at 674. In asserting a pocketbook injury, the plaintiff-states in Texas instead pointed to the additional state funds that they alleged that they would expend in response to the federal government’s assertedly unlawful under-regulation of third parties, which the plaintiff-states contended would cause more undocumented noncitizens to be within their states than otherwise would be the case. Id. at 674-75. Thus, given how different Texas is not only from this case but also from Biden and Department of Commerce, the portion of the standing analysis in Texas on which the Government relies provides no basis for us to conclude that it has made the required “strong showing” to undermine the Plaintiff-States’ Article III standing.
The Government does also invoke in its stay motion an out-of-circuit precedent, Washington v. FDA, 108 F.4th 1163 (9th Cir. 2024), for the general proposition that an “indirect” fiscal injury does not constitute an Article III injury. One of the state plaintiffs in Washington claimed economic injury in the form of increased costs to the state’s Medicaid system, and the court there determined that the claimed injury “depend[ed] on an attenuated chain of healthcare decisions by independent actors.” Id. at 1174; see also id. at 1170-71 (explaining Idaho’s contention that the FDA’s elimination of an in-person dispensing requirement for a particular medication would lead to increased use of that medication, which in turn would lead “more women [to] experience complications that require follow-up care, some of which [will be] borne by Idaho through Medicaid expenditures” (second alteration in original) (internal quotation marks omitted)). In other words, as in Texas, the asserted injury took the form of the additional state funds that the plaintiff-state claimed that it would spend as a result of the federal government’s lack of regulation of a third party — namely, the U.S. Food and Drug Administration’s elimination of an in-person dispensing requirement for a medication. See id. at 1174. This precedent thus no more assists the Government’s position with respect to the loss-of-federal-funds-based injury at issue here than Texas does.
The Government separately contends in its stay motion, without reference to either Department of Commerce or Biden, that if the Plaintiff-States’ alleged injury from the loss of fees from the Social Security Administration’s EAB program sufficed for Article III standing, then states would “equally have standing to challenge any federal action that conceivably lowers the birthrate within their borders.” (Emphasis added). But, although “qualifying for less federal funding” is “primarily [a] future injur[y],” it can still be an Article III injury when “the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Dep’t of Com., 588 U.S. at 767 (emphasis added) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). Yet, the Government does not explain why the loss of the EAB servicing fees differs from the loss of the loan servicing fees in Biden, which loss was held to be an Article III injury. 143 S. Ct. at 2365-66.
The Government more broadly contends in its stay motion that because the Plaintiff-States have “voluntarily chosen to provide certain benefits without regard to the recipient’s citizenship,” “the costs they incur to do so are self-inflicted costs” that “are not traceable to the Executive Order” and thus “do not confer standing to sue in federal court.” In doing so, the Government appears to contend that the Plaintiff-States have no claimed injuries that are immune from this “self-inflicted costs” objection. But, insofar as this contention is a reprise of the argument based on Texas and Washington, it fails for the same reasons as that argument fails. And, in any event, the Government has not explained why — and so has not made a “strong showing” that — it is likely to succeed in establishing that the Plaintiff-States’ claimed fiscal injury is the result of their “voluntary” choice to spend their own funds insofar as that injury is the loss of federal funds to which they otherwise would be entitled for administering the federal programs at issue. After all, Biden did not deem the plaintiff-state’s loss of the fees for servicing federal student loans to be the result of such a choice by the plaintiff and thus not a basis for its Article III standing. See 143 S. Ct. at 2365-66. Nor did Department of Commerce so deem the loss of federal funds there. 588 U.S. at 766-67.
We thus conclude that the Government has failed to make a “strong showing” that the Plaintiff-States likely lack Article III standing.
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