First Circuit Denies Stay on Trump’s Birthright Citizenship Order

This blog has been updated to reflect recent events.

On his first day in office, President Donald Trump signed the executive order effectively ending birthright citizenship. The next day, eighteen states filed a lawsuit to block the order. On February 13, 2025, a U.S. District Court for the State of Massachusetts issued a nationwide preliminary injunction to stop the order from being implemented and enforced.

The government then appealed to the United States Court of Appeals for the First Circuit to lift the injunction. In the motion for stay pending appeal, the U.S. did not ask to rule on the merits of the case but to reject the injunction due to the plaintiff’s lack of standing and the overbroad scope of the injunction. Simply put, the issue was whether the EO could go into effect while the litigation is ongoing.

The First Circuit Court of Appeals denied the government’s motion to stay pending appeal, temporarily preventing enforcement of Trump’s executive order. The Trump administration has appealed to the U.S. Supreme Court.

What Is Birthright Citizenship?

Under the citizenship clause of the 14th Amendment, anyone born on U.S. soil is a U.S. citizen. After the Civil War, Congress ratified the 14th Amendment to grant citizenship to formerly enslaved people born in the U.S. Before that, under Dred Scott v. Sandford, enslaved persons with African descendants were not considered U.S. citizens.

What Does Trump’s Executive Order Say?

Trump’s birthright citizenship order, “Protecting the Meaning and Value of American Citizenship,” asserts that citizenship may only be conferred to children with one or more parents who hold U.S. citizenship or lawful permanent resident status (e.g., a “green card”).

What Did the States Argue?

The states assert that they have the standing to challenge Trump’s executive order because they would suffer direct harm if it were enforced. The states administer federal funds for education, healthcare, and Social Security, and the order would cause them to lose federal funding. They also claim that the order violates the Fourteenth Amendment citizenship clause and 8 U.S.C. § 1401 of the Immigration and Nationality Act, which defines a citizen of the United States as one that is born in the United States. They argue that the order disrupts long-standing practices and denies U.S. citizenship to individuals not only born in their jurisdiction but who move to their state.

What Did the U.S. Argue?

The federal government maintains that the states lack standing to challenge the order because their claims of injury are speculative, meaning they have not happened yet. Further, the citizenship clause and 8 U.S.C. § 1401 protect individuals, not states. The federal government also argues that the injunction is overbroad, causes irreparable harm to immigration policy, and prevents the Trump Administration from executing its duties.

What the First Circuit Held

A party must demonstrate the following three factors for a stay of a preliminary injunction:

• Likelihood of Success on the Merits: The party is likely to succeed on the merits of the appeal.
• Irreparable Injury: There will be irreparable harm if the party is not granted the stay.
• Substantial Injury to Other Parties: The stay will not substantially injure the other parties involved in the proceeding.

The First Circuit determined that the U.S. did not show enough evidence that the states lacked standing. The unanimous panel held that state governments would incur irreparable harm by the nationwide injunction. The First Circuit was unconvinced by arguments that the executive order was lawful. The court denied the Government’s stay and said in the ruling:

“…we must consider how the interests of the broader public are affected by “premature enforcement” of the determination in the Executive Order regarding who is entitled to be recognized as a U.S. citizen. The risks that this determination may later be deemed wrong are high, given that the Government does not argue to us that the Executive Order likely complies with either federal constitutional or federal statutory law.”

This is the third time a federal court of appeals refused to lift the injunction. The result is that Trump’s executive order is temporarily banned from enforcement while the appeal is ongoing.

Supreme Court Could Take Up Issue of Nationwide Injunction

On Thursday, March 13, the Trump administration asked the Supreme Court to limit the nationwide injunction currently in place. For now, the merits of the case -- whether the executive order violates the Constitution -- will not be decided. Instead, SCOTUS will determine whether the nationwide injunction issued by lower courts is valid. If not, the policy could be implemented immediately. If upheld, the case could again be heard before the Supreme Court on the merits. SCOTUS could also decline to take up the issue for now.

Related Resources

• What Are Executive Orders? What Are Their Limits? (FindLaw Law and Daily Life)
• It's Not Over Yet: Here's What to Know About Litigation Surrounding the Birthright Citizenship Executive Order. (FindLaw's Law and Daily Life)
• The Fourteenth Amendment (FindLaw U.S. Constitution)
• U.S. Citizenship Through Parents or by Birth (FindLaw Learn About The Law)