Cases & Developments

Order granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the states of Washington, Arizona, Illinois, and Oregon sought declaratory and injunctive relief, against the Federal Government alleging that Executive Order: “Protecting the Meaning and Value of American Citizenship” violates the Citizenship Clause of the Fourteenth Amendment and the Immigration and Nationality Act (INA). The Order instructs that no department or agency of the United States government shall issue documents recognizing U.S. citizenship to persons: (1) when 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 their birth, or (2) when 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 their birth. In finding that plaintiffs are likely to succeed on their claim that the Order violates the Citizenship Clause of the Fourteenth Amendment and the INA, the Court found that a clear reading of the text in the Citizenship Clause is enough: “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 wherein they reside.” The Court further wrote that the Government inappropriately interpreted the phrase “subject to the jurisdiction” beyond its normal and ordinary meaning and additionally relied on the words “allegiance” and “domicile” which do not appear in the Citizenship Clause, or anywhere in the Fourteenth Amendment; and ultimately found that the plain meaning of the phrase “subject to the jurisdiction” unequivocally applies to children born in the territorial United States, regardless of their parents’ immigration status. Additionally, the Court rejected the Government’s argument that the United States has not “consented” to making undocumented migrants citizens, expressly noting that the “United States has consented to the citizenship of children born on its territory, through the ratification of the Fourteenth Amendment” finding the Government’s argument to be unavailing and untenable. In granting plaintiffs’ motion for a nationwide preliminary injunction and enjoining enforcement or implementation of the Order on a nationwide basis, the Court concluded “the President cannot change, limit, or qualify this Constitutional right via executive order.”

Memorandum Opinion and Order granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, CASA, Inc. and Asylum Seeker Advocacy Project, two nonprofit organizations that provide services to immigrants, as well as several pregnant women without permanent legal status sought declaratory and injunctive relief, alleging that Executive Order 14160 (“Protecting the Meaning and Value of American Citizenship”) violates the Fourteenth Amendment and the Immigration and Nationality Act (“INA”). In finding that plaintiffs “easily have met the standard for a preliminary injunction” the Court writes that the President’s interpretation of the Citizenship Clause contradicts the plain language of the Fourteenth Amendment and conflicts with 125-year-old binding U.S. Supreme Court precedent (United States v. Wong Kim Ark, 169 U.S. 649 (1898)). Further reasoning “Nothing in Wong Kim Ark remotely supports the government’s narrow reading of the decision” and “the Government cites no case decided after Wong Kim Ark that supports the President’s interpretation of the Fourteenth Amendment. And there is none.” In determining that a nationwide injunction against the Order was appropriate, the Court concluded “the Executive Order flouts the plain language of the Fourteenth Amendment to the United States Constitution, conflicts with binding Supreme Court precedent, and runs counter to our nation’s 250-year history of citizenship by birth.”