First Circuit Rules Trump's Birthright Citizenship Executive Order is Unconstitutional

This is the second appellate court ruling against the order. So far, every court that has addressed this issue has ruled the same way.

Photo by saiid bel on Unsplash; Reamolko

Yesterday, the US Court of Appeals for the First Circuit issued a decision that Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas is unconstitutional. It also ruled that it violates a 1952 law granting naturalization to children born in the United States, and upheld a nationwide injunction against implementation of the order. This is the second appellate court decision ruling against Trump's order, following an earlier Ninth Circuit decision. Multiple district court judges (including both Democratic and Republican appointees) have also ruled that the order is illegal, and so far not a single judge has voted to uphold it.

Judge David Barron's opinion for the First Circuit runs to 100 pages. But he emphasizes that this length is the product of the large number of issues (including several procedural ones) that had to be considered, and does not mean the case is a close one:

The analysis that follows is necessarily lengthy, as we must address the parties' numerous arguments in each of the cases involved. But the length of our analysis should not be mistaken for a sign that the fundamental question that these cases raise about the scope of birthright citizenship is a difficult one. It is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright.

I won't try go to through all the points in the decision in detail. But I think Judge Barron's reasoning is compelling and persuasive, particularly when it comes to explaining why this result is required under the Supreme Court's ruling in the 1898 Wong Kim Ark case, and why the 1952 naturalization statute provides an independent ground for rejecting Trump's order.

I would add, as I have noted previously (e.g. here and here), that virtually all the government's arguments for denying birthright citizenship to children of undocumented immigrants and those on temporary visas would also have denied it to numerous slaves freed as a result of the Civil War and the Thirteenth Amendment. For example, if children of people who entered the US illegally are ineligible, that would exclude the children of many thousands of slaves who were brought into the US illegally after Congress banned the slave trade in 1808. And granting citizenship to freed slaves and their children was, of course, the main purpose of the Citizenship Clause of the Fourteenth Amendment.

I also think the ruling is sound in concluding that the state government plaintiffs in the case have standing to sue (though, admittedly, the Supreme Court's precedents on state standing are far from a model of clarity), and in suggesting that "complete relief" for their injuries requires a nationwide injunction (though it ultimately remanded this issue to the district court for further consideration). State lawsuits are one of several possible exceptions to the Supreme Court's general presumption against nationwide injunctions in Trump v. CASA, Inc. Both this exception and that for class actions have been used in lower court decisions against the birthright citizenship order, since Trump v. CASA came down in June. These exceptions are among the reasons why CASA has so far not had anywhere near as devastating an impact as some feared (though I continue to believe it was a bad decision).

Both the substantive birthright citizenship issue and the procedural issue of the proper scope of injunctions are likely to return to the Supreme Court. Hopefully, the justices will affirm the lower court rulings on these issues. We shall see.

Comments

[JohnSteed]

We would all benefit from a word limit on judicial opinions. No author without overweening self indulgence needs 100 pages.

[John F. Carr]

In California the Supreme Court can unpublish a published opinion it doesn't like. It takes the case and summarily affirms without an opinion of its own. The judgment of the court below stands. The precedent does not.

The merits question here could be decided on a postcard. The procedural questions take some more work.

[Poxigah146]

Judge Barron was appointed by the stupid, treasonous Kenyan, so the result was a foregone conclusion.

[MollyGodiva]

It was also a foregone conclusion because it was correct from a legal perspective.

[JohnSmith97]

Why bother to have a 14th amendment, when every judge just ignores it?

[MollyGodiva]

Go ask SCOTUS. They are the ones that deleted 14A3S.

[Stephen Lathrop]

"We shall see?"

How can a legal expert at this point, given the lower court and appellate court rulings already made, be content with an exhortation to patience?

SCOTUS should have disposed of this non-issue promptly, as soon as possible after the first case was filed. Delay seems ominous. Even patience with delay seems ominous.

Perhaps some procedural failure on the part of lawyers for birthright citizen interests explains this delay? I hope so. I do not want to contemplate a possibility that SCOTUS has any role to put off a decisive rebuke to Trump.

[Poxigah146]

The fact that some low IQ mestizo hops over the Rio Grande, false claims asylum and is released into the United States, and later gives birth in our hospital at our expense doesn't mean that her illegitimate crotch dropping should be an American, with all the rights and privileges pertaining thereto.

Look at the pictures of the Guatemalans and other Central Americans streaming across the border. They're not Spaniards. They're nearly full-blooded American Indians. We don't need more Aztecs, Mayans and other people genetically predisposed to alcoholism, scalping and other disorder in this country. There's a reason we shoved these people onto reservations back in the 1800s. They don't belong among civilized human beings.

[Stupid Government Tricks]

There was a case just recently (https://www.scotusblog.com/2025/10/do-state-limits-on-malpractice-actions-apply-in-federal-court/) where a Florida resident had an accident in his Delaware house, was treated by a Delaware doctor, sued for malpractice, was bounced out for not following procedures, so he removed it to federal court for diversity reasons, never mind that everything happened in Delaware. The accident happened in August 2020. It is just now, 5 years later, getting the Supreme Court to decide which state's rules apply in federal court.

And you think this case is slow?

Last thing lawyers want is clarity which reduces their billable hours.

[David Nieporent]

While it has nothing to do with your point about the speed of the courts, your description of the procedural history of the case you cite is not correct. A plaintiff cannot remove a case, let alone a case that was dismissed. What happened was that the plaintiff sued in federal court in the first instance, the case was tossed for failure to comply with the Delaware AOM statute, and he appealed. (If the plaintiff had filed in state court, the defendant potentially could've removed — if he used snap removal — but would've had no incentive to do so in this case.)

[David Nieporent]

SCOTUS should have disposed of this non-issue promptly, as soon as possible after the first case was filed. Delay seems ominous. Even patience with delay seems ominous.

Sigh. You've been told repeatedly that this isn't how it works. The Supreme Court has no authority to just randomly grab cases and decide (or re-decide, in the case of your opposition to Trump v. U.S.) them.

[Riva]

Without having carefully reviewed the entire opinion, two initial thoughts come to mind. First, if one actually has a cogent argument one generally doesn't need to write a book length opinion desperately trying to convince your readers. Especially if the matter is simply enough to be resolved by a statute on point. Which brings us to thought number two. A rather circular thought. Because how does the 1952 law resolve the matter: "a person born in the United States, and subject to the jurisdiction thereof" "shall be [a]national[] and citizen[] of the United States." Well thanks 5th Circuit. Genius.

[thesafesurfer]

Thank you for the post.

[y81]

I usually think your comments are too silly to merit response, but in this instance I will note that the 1952 law has to be interpreted in accordance with the Wong Kim Ark precedent which governed at the time, and so indicates that Congress intended to codify that precedent. And Wong Kim Ark, for those who care to take the time to read it (it's much less than 100 pages), says very clearly that the 14th Amendment codified, indeed constitutionalized, the ancient common law of jus soli, rather than the emerging European trend of jus sanguinis. (Personally, I think continental Europe has nothing to teach us about the nature of the just state, so rejection of their practice and understanding, where it differs from ours, is always the right answer.)

[NvEric]

The Wong Kim Ark precedent has no bearing on illegal aliens here giving birth or illegal aliens seeking asylum giving birth.

Alien status must be positively established before any subject to the jurisdiction of the US comes into play which may then grant citizenship.

[Riva]

Don't recall reading your comments before but if the opening insult is any indication, they're weren't worth reading anyway.

And you might actually take the time to read Wong Kim Ark. There is admittedly much time spent on poorly worded dicta. The holding however is quite clear and limited:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Do me the kind favor and go back to not responding to my comments. Your obnoxious ignorance isn't helpful.

[Darwinnie]

Well, they’re not the historians the Supreme Court justices are. They’ll find them some history all right. At least six of them will anyway.

[John F. Carr]

There were three decisions because there were too many plaintiffs to fit into a single case. One of them left the constitutional questions to another opinion but ruled that the District Court should not have directed an injunction at the President. A judge can't order the President not to shoot a man on Fifth Avenue. A judge can order the Secret Service not to help him.

[thesafesurfer]

It ain't over until SCOTUS sings.

[Frank Drackman]

State Laws banning Abortion were "Unconstitutional"
until they weren't.
The Surpremes said Capital Punishment was "Unconstitutional" in 1972, then a few years later it wasn't.
and explain to me why if Obama Bin Laden had hidden out in Carlsbad CA, instead of Abbottabad Pock-E-Stan, any of his children born here would be Full Blooded Amurican Citizens.
Doesn't pass the Smell Test, like how can a team Ohio State not win it's Ohio State Conference Championship, not even PLAY in the Conference Championship, but win the National Championship??

Frank