News

27 Jan 2025

United States

Federal Court Issues Temporary Restraining Order Blocking Birthright Citizenship Executive Order

On January 23, 2025, in a lawsuit brought by the states of Washington, Arizona, Illinois and Oregon, the federal court for the Western District of Washington in Seattle issued a temporary restraining order (“TRO”) preventing the federal government from enforcing or implementing the Trump administration’s Executive Order (“EO”) of January 20, 2025, entitled Protecting the Meaning and Value of American Citizenship [Executive Order].  This EO, which we reported on in our Alert of January 21, denies United States citizenship to persons born in the United States whose parents were either not in lawful immigration status or held lawful nonimmigrant status at the time of the person’s birth.

The TRO will be in effect for fourteen days from January 23, 2025; as such its immediate practical effect is limited, given the fact that the EO will not go into effect until February 20, 2025. The TRO will, however, provide a period for the court to consider further the legality of the EO and possibly issue an injunction prohibiting its implementation on February 20, 2025. The Trump administration has indicated its intention to file an appeal with the Ninth Circuit Court of Appeals. There are presently a number of other pending lawsuits challenging the EO that have been filed by twenty-two states and a number of civil rights organizations.  As the lawsuits progress and appeals are filed and heard, it is possible that the legality of the EO will eventually be considered by the United States Supreme Court, especially if there is a split or difference of opinion on this legality between two or more federal circuit Courts of Appeal.

The TRO was issued based on a “strong likelihood” that the EO will be shown to violate the Fourteenth Amendment to the United States Constitution and the Immigration and Nationality Act and the judge issuing the TRO expressed grave misgivings about the legality of the EO, referring to it as “blatantly unconstitutional.”  The strong language issued by the judge suggests that it is likely that he will issue an injunction preventing the implementation of the EO in the coming weeks. The Trump administration will respond by filing an appeal, as noted above, and it is unlikely that the matter will be settled by the EO’s scheduled effective date of February 20, 2025. It is also possible that the administration may withdraw the EO and reissue a new EO of more limited scope (limiting its applicability only to children whose parents did not hold lawful status or were in the United States in B Visitor status, for example).

There will undoubtedly be a number of developments involving the birthright citizenship EO in the coming weeks and we will continue to monitor these closely, providing updates as events occur.

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