The U.S. Court of Appeals for the First Circuit today made a decision that is likely to raise many eyebrows, refusing the Trump Administration’s motion for a stay pending appeal related to a district court’s universal preliminary injunction targeting President Trump’s Executive Order aiming to limit birthright citizenship. Interestingly, what the Department of Justice chose not to argue is as bemusing as the court’s ruling itself. They abstained from arguing for their likely triumph defending the merits of the Executive Order and preferred to posit that they could win challenging the standing of the state plaintiffs. However, the court didn’t fall for this.
Oddly enough, the Government almost seemed to sidestep the question of constitutionality of the Executive Order. With no solid argument on the likely success of their appeal, showing that the Executive Order complies with section 1401 of 8 U.S.C. and resonates with the constitution, they instead contended they could win the case of the preliminary injunction, notwithstanding the lack of argument that the Executive Order is lawful. Rashly enforcing the Executive Order, they argued, would not disrupt ongoing governmental practices, despite it clashing with long-established legal positions.
Deepening the rabbit hole of their argument, the Government insisted that they have made a ‘strong showing’, alluding to the first Nken factor. In their view, the Plaintiff-States lack standing, not just under Article III of the U.S. Constitution, but also under third-party standing principles. However, as we’ll unravel in the coming paragraphs, their argument is far from compelling as far as making this ‘strong showing’ to undercut the Plaintiff-States’ standing in both respects.
The Government attempted to add weight to their argument, pulling in out-of-circuit precedent, Washington v. FDA. Quoting this seemingly unrelated case, they urged that an ‘indirect’ fiscal injury does not equate to an Article III injury. In the referenced precedent, a state plaintiff alleged economic injury due to spiked costs to the state’s Medicaid system, with the court ruling that this injury was due to a sequence of healthcare decisions made by unrelated actors.
Both rapidly and flippantly, the Government put forth that if fiscal losses due to a decrease in fees from the Social Security Administration’s EAB program are considered sufficient for Article III standing, it would also mean that states have standing to dispute any federal action that hypothetically reduces their birthrate. However, ‘qualifying for less federal funding’ could be an Article III injury, granted that ‘the threatened injury is certainly impending, or there is a substantial risk that self-inflicted harm will occur’.
The Government failed to convincingly explain why the EAB servicing fees loss differed from the loan servicing fee losses in Biden, with the latter deemed an Article III injury. This whole ordeal leaves us with precious little evidence that the Government has made a ‘strong showing’ to reduce Plaintiff-States’ standing.
A controversial point the government leans on was that the Plaintiff-States, having ‘voluntarily chosen to provide certain benefits without regard to the recipient’s citizenship’, are to blame for their fiscal woes. Despite this proposition doing nothing to confer them standing in federal court, it’s rather audacious that the costs incurred by these states are viewed as self-inflicted and not traced back to the Executive Order.
The Government’s argument seems to insist that no stated injuries by the Plaintiff-States are exempt from this ‘self-inflicted costs’ objection. However, it merely echoes the faulty argument based on Texas and Washington. The reasoning is not only overused but also undersupplied. It’s baffling that the Government has barely strived to convince that these claimed losses are mere consequences of states’ ‘voluntary’ choice to expend their finances.
The lack of explanation is doubly puzzling given the potential injuries, such as federal funding loss, which the Plaintiff-States may encounter due to their administration of the respective federal programs. Biden, for instance, did not view the plaintiff-state’s lost fees for managing federal student loans due to a choice by the plaintiff state, thus making it a basis for Article III standing.
Moreover, Department of Commerce made no such claim regarding the loss of federal funds either. Altogether, the Government’s stumbling effort to make a ‘strong showing’ that the Plaintiff-States probably lack Article III standing remains unsatisfactory.
In the grand scheme, this event signifies a potential paradigm shift in the legal interpretations of birthright citizenship, spurred by the Trump administration. However, all incidents suggest that the Government’s case is not as strong as they would like us to believe. It’s as if they’re trying to traverse a turbulent sea in a rickety boat, without the constitution to act as their compass.
Regardless of the Government’s attempts at obfuscation, their lackluster strategy is evident. The choice to skirt around the topic of the legitimacy of the Executive Order is not a sign of confidence, but rather the marking of a poorly mapped out path through the labyrinth of legal proceedings.
The argument presented by the Government contending that states voluntarily opt to shoulder financial burden, hence undermining their legal standing, comes across as both imprudent and facetious. States should not be painted as scapegoats for the inadequacies of the Executive Order they did not implement themselves.
Overall, the evidence presented by the Government does not reinforce their position nor seriously challenge the standing of the Plaintiff-States. This entire episode might just end up being a ‘cautionary tale’ for the Government while presenting an argument, especially when wrapping it around outdated or unrelated precedents.
Ultimately, this glaring discrepancy in Government tactics raises more questions than it answers and reveals an overwhelming lack of clarity in their approach. It also highlights a pattern of concealing failures under the veil of complex, if not ambiguous, legal language that needs to be unpacked to reveal its emptiness.