9th Circuit rules against Trump on birthright citizenship

A 9th U.S. Circuit Court of Appeals panel on Wednesday evening rejected the Trump administration's motion for a partial stay of a Washington state judge's preliminary injunction blocking President Donald Trump's executive order revoking birthright citizenship.

The three-judge panel agreed with Senior U.S. District Judge John C. Coughenour of the Western District of Washington's decision to grant a nationwide injunction against Trump, although for slightly different reasons.

The order was issued late Wednesday by a motions panel comprised of 9th Circuit Judge Milan D. Smith, an appointee of President George W. Bush; Senior Judge William A. Canby, an appointee of President Jimmy Carter; and Judge Danielle J. Forrest, a Trump appointee.

Smith and Canby ruled the U.S. Department of Justice had not made a strong showing it was likely to succeed on the merits of its appeal, which asked the court to remove four states - Washington, Oregon, Arizona and Illinois - from the case while leaving individual plaintiffs.

Forrest agreed with the outcome but ruled that the federal government failed to prove it needed relief on an emergency basis, by Thursday.

"Here, the government has not shown it is entitled to immediate relief," Forrest wrote. "And just because a district court grants preliminary relief halting a policy advanced by one of the political branches does not in and of itself an emergency make." State of Washington et al. v. Trump et al., 25-807 (9th Circ., filed Feb. 7, 2025).

The 9th Circuit panel scheduled a hearing on the merits of the case on the court's June calendar.

Washington Attorney General Nick Brown, joined by Democratic attorneys general in Arizona, Oregon and Illinois, split from a larger group of attorneys general including Rob Bonta of California who filed their challenge to Trump's executive order in Massachusetts.

U.S. District Judge Leo T. Sorokin of the District of Massachusetts granted a preliminary injunction blocking Trump's order last week, and the Trump administration filed a motion in the 1st U.S. Circuit Court of Appeals seeking a stay on Wednesday. State of New Jersey et al. v. Trump et al., 25-1170 (1st Circ., filed Feb. 19, 2025).

The 1st Circuit has been an attractive venue for Bonta and other plaintiffs because it has five appellate judges, all appointed by Democratic presidents.

The 9th Circuit, though it has a reputation as a liberal court, is divided 16-13 in favor of Democratic appointees and is more unpredictable due to certain three-panel draws and a unique system in which only 11 of the 29 judges sit on en banc panels.

Judges on 9th Circuit en banc panels - with the exception of Chief Judge Mary H. Murguia, an appointee of President Barack Obama - are chosen by lot.

The Democratic attorneys general have kept mum about the decision to file in different circuits.

"With litigation currently in the federal courts and potentially more to come, we're not in a position to talk about that kind of strategic decision-making," Mike Faulk, communications director for Washington Attorney General Nick Brown, wrote in an email last week.

The key issue in the cases is the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution. Judges have relied on an 1898 U.S. Supreme Court decision to conclude that any person born in the United States or properly naturalized according to federal procedures is a citizen. United States v. Wong Kim Ark, 169 U.S. 649 (1898).

U.S. Department of Justice attorney Brett Weiss contests those conclusions but argued that the panel did not need to reach the merits. "The district court believed that, because of purported injuries to four plaintiff States, it was appropriate to enjoin the operation of the Executive Order nationwide," he wrote. "That step was plainly unjustified, and a stay is warranted."

Thus far, federal judges have disagreed, and the cases are destined for the U.S. Supreme Court, which has the authority to overrule Wong Kim Ark or accept the Trump administration's arguments if it chooses to do so.