The U.S. Court of Appeals for the First Circuit recently dismissed the attempt by the Trump administration to get a stay on the appeal of a district court’s universal preliminary injunction. This injunction was against the enforcement of an Executive Order that was seen as a threat to birthright citizenship. However, similar actions have taken place across various circuit courts. In a rather peculiar twist, the Justice Department did not make an effort to show a probability of succeeding based on the merits of the Executive Order itself.
Rather, the administration’s legal team submitted briefs suggesting their likelihood of success would rest upon their ability to question the legitimacy of the plaintiffs – in this case, this meant the standing of the states bringing the case. The court did not find this approach convincing, and the government’s arguments fell flat. Notably, the administration did nothing to argue that they might win an appeal showing the Executive Order is constitutional or satisfies the requirements of 8 U.S.C. § 1401.
Moreover, they did not oppose the fact that for over 100 years, people in the categories that the Executive Order seeks to disallow from being recognized as United States citizens, have been accepted as such. Rather brazenly, the administration has suggested that they can argue for a stay of the preliminary injunction without providing a coherent argument demonstrating the Executive Order’s legality. Furthermore, they claimed this even though the implementation of the Order would be a grave departure from the Executive Branch’s established legal position and would upset time-honored government practices.
The government’s main claim in arguing so seems to hinge on the point that they have made a ‘strong showing’ that the states bringing the lawsuit likely do not have standing according to Article III of the U.S. Constitution. Article III, § 2, cl. 1 stipulates that the ‘judicial Power shall extend’ to ‘Cases’ and ‘Controversies’. The Court was not persuaded by this argument and concluded that the government, at least based on its stay motion, didn’t present a ‘strong showing’ to undermine the Plaintiff-States’ standing.
In its stay motion, the government also invoked an out-of-circuit precedent, Washington v. FDA, for the argument that an ‘indirect’ fiscal injury does not constitute an Article III injury. One of the states in the aforementioned case claimed an economic injury due to increased costs to its Medicaid system. However, it was eventually ruled that this supposed injury depended on a manipulated chain of healthcare decisions by unconnected actors.
The government has also argued that if a supposed injury due to loss of fees from the Social Security Administration’s EAB program was enough for Article III standing, then states would supposedly have standing to challenge any federal action that might reduce the birthrate within their territories. This smacks of desperation in their arguments, seldom seen in such high-stakes cases.
Even though the supposed qualifying for less federal funding is typically a future injury, it can still qualify as an Article III injury when the threatened harm is impending or carries a significant risk of occurring. However, the government doesn’t explain why the loss of EAB servicing fees should be treated differently than the loss of loan servicing fees in a case against Biden – which was judged as an Article III injury.
The government continued its string of blunders by claiming in its stay motion that since the Plaintiff-States had ‘voluntarily chosen to provide certain benefits without considering the recipient’s citizenship’, the costs they incur in doing so are self-imposed and are not a consequence of the Executive Order. Consequently, they don’t grant them the standing to sue in the federal court. This seems to be a misguided contention presented intentionally to misdirect.
It almost appears as though the administration is suggesting the Plaintiff-States have no injuries immune to the ‘self-inflicted costs’ argument. However, their argument is simply a retread of past contentions based on similar cases in Texas and Washington, and fails for the same reasons these previous attempts failed. It becomes clear when you strip away the administration’s attempts at legal gymnastics that their case is rather weak.
Moreover, the government has not provided an explanation, let alone a ‘strong showing’, to suggest that it is indeed likely to succeed in proving that the Plaintiff-States’ claimed fiscal injury results from their ‘voluntary’ choice to use their own funds. This comes into play especially when the injury in question is the loss of federal funds that they were otherwise entitled to for administering the federal programs being addressed.
This behavior seems to closely align with the way Biden managed previous cases – failing to deem the plaintiff-state’s loss of the fees for servicing federal student loans as the result of such a decision made by the plaintiff and hence not a basis for its Article III standing. Adding to the confusion, The Department of Commerce seemed to follow a similar pattern.
In conclusion, it is abundantly clear that the government has fallen significantly short of producing a ‘strong showing’ proving that the Plaintiff-States likely lack Article III standing. Once again, the previous questionable actions by the Biden administration seem to be paving the way for litigants bending over backwards to make their case. Despite desperate provisions and attempts to circumvent established legal principles, the government’s efforts have not yielded positive results in the courts.
Seen from a broader perspective, the Biden administration seems to be lost in its battle against state rights and seems to be setting the wrong precedent that might lead to more challenges ahead. At this point, it might be apt to take the words of the departed Justice Ruth Bader Ginsburg to heart when she said, ‘In a democracy, there can be no better resolve than to respect the insight of the states.’
The handling of this incident reiterates the general perception regarding the incompetence of the Biden administration, especially concerning matters of the Constitution. The dubious handling of the case raises several questions on their approach towards resolving national issues.
Overall, the context surrounding this case builds a worrying portrait of an administration that is quick to twist the law to its advantage, while blatantly disrespecting the rights of states. Joe Biden and Kamala Harris have once again shown their questionable approach towards the Constitution, bending it to their will, ignoring the centuries-old wisdom that gave birth to it. When the government tries to undercut the independence of the states, it leads to an imbalance in the brilliant design of checks and balances, integral to the U.S. Constitution. This is another instance of the Biden administration’s disregard for the principles that make America great.