Stay Pending Appeal Denied When the Government Declines to Defend Merits and Fails to Undermine State Standing in a Universal Birthright-Citizenship Injunction

I. Introduction

In State of New Jersey v. Trump (1st Cir. Mar. 11, 2025), a coalition of states, the District of Columbia, and the City and County of San Francisco (collectively, the Plaintiff-States) challenged Executive Order No. 14,160, titled “Protecting the Meaning and Value of American Citizenship”. The Executive Order directed federal agencies, in two specified circumstances tied to parental immigration status, not to recognize certain U.S.-born persons as U.S. citizens.

The Plaintiff-States alleged violations of the Citizenship Clause of the Fourteenth Amendment and 8 U.S.C. § 1401. The District Court (D. Mass.) issued a “universal” preliminary injunction preventing federal officials (not the President) and those acting in concert with them from implementing or enforcing the Executive Order. The federal government sought a stay pending appeal of that preliminary injunction.

The First Circuit (Barron, C.J.) addressed only the stay request, not the merits appeal, and denied the stay.

II. Summary of the Opinion

Applying Nken v. Holder, the court held the Government failed to carry its burden for the “extraordinary” remedy of a stay. Critically, the Government declined to develop any argument that the Executive Order was lawful under the Fourteenth Amendment or 8 U.S.C. § 1401, and instead focused on attacking the Plaintiff-States’ standing (Article III and third-party standing).

The court concluded the Government did not make the required “strong showing” that it was likely to succeed on appeal—particularly because it failed to meaningfully confront the Plaintiff-States’ standing theory based on loss of federal funds (and related fees), a theory supported by Department of Commerce v. New York and Biden v. Nebraska. The court also rejected the Government’s third-party standing objection as underdeveloped and inconsistent with controlling standards. Finally, the court found the Government did not satisfy the remaining stay factors, and it declined to narrow the injunction’s scope based on arguments not properly presented below.

III. Analysis

A. Precedents Cited

1. Standards for preliminary injunctions and stays

  • Winter v. Nat. Res. Def. Council, Inc.: The court reiterated the four-factor preliminary injunction test and the “extraordinary remedy” framing. This provided the baseline against which the District Court’s preliminary injunction ruling was evaluated.
  • Murthy v. Missouri: The court emphasized that a plaintiff seeking a preliminary injunction must make a “clear showing” of likely standing—importantly tying standing showings to preliminary-relief posture.
  • Ashcroft v. ACLU: Cited for abuse-of-discretion review of preliminary injunction grants, underscoring the deference built into appellate review.
  • Nken v. Holder: The controlling framework for stay pending appeal: (1) likely success on the merits (strong showing), (2) irreparable injury to movant, (3) no substantial injury to other parties, and (4) public interest; with the first two “most critical.”
  • Scripps-Howard Radio v. FCC: Used to frame the public-interest inquiry as including the risk of harms from “premature enforcement” of a determination later found wrong.
  • Virginian Ry. Co. v. United States: Quoted via Nken v. Holder to stress stays are discretionary and context-dependent.

2. Case-management and adversarial presentation constraints

  • Labrador v. Poe: Noted the “tight timeline” for interim relief can impair orderly decisionmaking—supporting the panel’s insistence that the parties must properly develop issues.
  • Greenlaw v. United States: Invoked for the principle that courts rely on parties to frame issues—important here because the Government refused to brief lawfulness of the Executive Order.
  • Abernathy v. Wandes (citing Hill v. Kemp): Used to justify restraint where the court lacks “vigorous adversarial testing,” reinforcing why the panel would not supply missing merits arguments for the Government.

3. Article III standing and fiscal injury

  • Department of Commerce v. New York: Central to the Plaintiff-States’ standing: loss of federal funds can be an injury in fact, including when the injury is future but “certainly impending” or poses a “substantial risk.”
  • Biden v. Nebraska: Also central: the Court treated a loss of fees as an injury in fact “directly traceable” to challenged government action. The First Circuit used this to undermine the Government’s “attenuation” and “self-inflicted” arguments.
  • United States v. Texas: The Government relied on Texas’s discussion of attenuated injuries; the panel distinguished Texas because it involved alleged increased state expenditures responding to under-regulation and third-party behavior—unlike direct loss of federal funds.
  • Washington v. FDA: Cited by the Government for “attenuated chain” injuries; the panel again distinguished it as involving independent-actor causation and indirect Medicaid costs.
  • Susan B. Anthony List v. Driehaus: Cited via Department of Commerce v. New York for imminence standards (“certainly impending” / “substantial risk”).
  • Linda R.S. v. Richard D.: Mentioned in distinguishing United States v. Texas (prosecution/enforcement-discretion context) from this case.

4. Third-party standing and parens patriae limits

  • Warth v. Seldin and Kowalski v. Tesmer: The Government invoked the general bar on asserting others’ rights; the panel emphasized Kowalski also recognizes third-party standing when enforcement against the litigant would “indirectly” violate third-party rights.
  • June Med. Servs. L.L.C. v. Russo: Reinforced that the Court has “generally permitted” third-party standing when Kowalski’s indirect-violation condition is met; also served to highlight waiver/forfeiture risk when third-party standing arguments are not properly preserved.
  • Craig v. Boren: The Government cited it (belatedly) to narrow the “indirect violation” line; the panel rejected that characterization, noting Craig itself involved economic injury and did not confine the doctrine to sanctions/penalties.
  • Barrows v. Jackson: Cited (via June Med. Servs. L.L.C. v. Russo) as an example where a party facing a direct pocketbook injury could assert third-party equal protection rights—undercutting the Government’s attempt to cabin the doctrine.
  • South Carolina v. Katzenbach: Cited by the Government for parens patriae limits; the panel distinguished it because the Plaintiff-States were not proceeding on a parens patriae theory.
  • Haaland v. Brackeen and Murthy v. Missouri: Used by the Government to argue states cannot assert derivative injuries; the panel distinguished them as involving thinly veiled parens patriae and/or lack of concrete injury, and lacking the “enforcement-against-the-litigant indirectly violates third-party rights” structure.
  • INS v. Legalization Assistance Project of the L.A. Cnty. Fed'n of Labor: The Government cited it for irreparable harm/public interest where immigration authority is impeded; the panel emphasized that decision turned on a strong standing defect—missing here.

5. Waiver, arguments first raised on reply, and appellate restraint

  • Sparkle Hill, Inc. v. Interstate Mat Corp.: Used to reject arguments raised for the first time on reply (both on standing-related points and timing/attenuation contentions).
  • Acevedo-García v. Vera-Monroig: Cited to decline consideration of stay arguments raised for the first time in the court of appeals.
  • Philip Morris, Inc. v. Harshbarger (quoting United States v. Zenon): Used to refuse scope-based objections to a preliminary injunction raised for the first time on appeal; the rationale is institutional: district courts should have the first opportunity to consider and correct tailoring issues.

6. Related proceedings noted (persuasive context)

  • Washington v. Trump (9th Cir.) and Casa, Inc. v. Trump (4th Cir.): Noted as recent denials of stay requests relating to the same Executive Order, illustrating consistent interim-relief outcomes in other circuits (though not treated as controlling precedent).
  • Ryan v. U.S. Immigr. & Customs Enf't: Cited regarding how the court considered amici submissions only insofar as they addressed issues raised by the parties.

B. Legal Reasoning

1. The decisive strategic gap: no merits defense of the Executive Order

The court’s reasoning is anchored in the structure of Nken v. Holder: without a “strong showing” of likely success on the merits, a stay is ordinarily unavailable. Here, the Government “expressly declines” to develop any argument that the Executive Order is constitutional or consistent with 8 U.S.C. § 1401, despite the Executive Order’s admitted break with over a century of governmental practice (with the court citing Legis. Denying Citizenship at Birth to Certain Child. Born in the U.S., 19 Op. O.L.C. 340 (1995)). That left the Government attempting to win on threshold standing alone.

2. Article III standing: direct loss of federal funds versus indirect expenditures

The Plaintiff-States’ key standing theory was a loss of federal funds and fees (including through the Social Security Administration’s Enumeration at Birth (“EAB”) program). The panel treated that theory as strongly supported by Department of Commerce v. New York and Biden v. Nebraska, both of which involved state plaintiffs asserting concrete fiscal injury from the loss of funds or fees traceable to federal action.

The Government’s reliance on United States v. Texas and Washington v. FDA was rejected as a category mistake: those cases involved attenuated causal chains hinging on third-party behavior and state spending choices in response to under-regulation, not direct federal-funding loss. The panel also rejected the Government’s “self-inflicted costs” framing because it did not explain why the Plaintiff-States’ asserted injury—being denied federal funds to which they would otherwise be entitled for administering federal programs—should be treated as voluntary in the sense disqualifying traceability.

3. Third-party standing: indirect violation channel and the Executive Order’s operational design

The Government argued the Plaintiff-States were asserting individuals’ citizenship rights. The panel responded by emphasizing the third-party standing line recognized in Kowalski v. Tesmer and reaffirmed in June Med. Servs. L.L.C. v. Russo: third-party standing may exist when enforcement against the litigant would “indirectly” violate third-party rights.

That mattered because the Executive Order was designed to operate directly on governmental actors: it instructed federal agencies not to accept state/local documents “purporting to recognize United States citizenship” for the covered categories. Thus, the Plaintiff-States plausibly faced direct fiscal and administrative consequences while the order indirectly denied individuals citizenship recognition. The panel found the Government did not grapple with that doctrinal pathway and, in some instances, raised narrowing arguments too late (on reply).

4. Irreparable harm and public interest: no presumption without a strong merits/standing showing

The Government argued that injunctions interfering with presidential immigration responsibilities inherently cause irreparable harm and disserve the public interest. The panel rejected this as insufficient on the record, distinguishing INS v. Legalization Assistance Project of the L.A. Cnty. Fed'n of Labor because that in-chambers decision involved a persuasive showing of standing deficiencies—absent here.

The panel also stressed the public interest risk of “premature enforcement” of an eligibility rule later found unlawful (Scripps-Howard Radio v. FCC), especially where the Government did not even argue the Executive Order was likely lawful.

5. Scope/tailoring and waiver: narrowing theories must be presented below

The Government sought at least a partial stay to narrow the “universal” reach. The First Circuit refused to consider a newly formulated alternative injunction theory because it was not properly presented to the District Court, invoking Philip Morris, Inc. v. Harshbarger, United States v. Zenon, and Acevedo-García v. Vera-Monroig. The court also rejected the contention that the injunction improperly barred internal policy formulation, noting the Government identified no concrete internal steps actually prohibited by the order and reading the injunction as focused on “implementing and enforcing” the Executive Order.

C. Impact

  • Interim-relief litigation strategy: The decision signals that a movant seeking a stay—especially the Government—cannot rely on generalized claims of executive prerogative while declining to brief the challenged policy’s lawfulness; Nken’s “strong showing” requirement still bites.
  • State standing grounded in federal-funding loss: The opinion reinforces that states can establish Article III injury where federal action foreseeably deprives them of federal funds or fees, and that attempts to recharacterize such injuries as “attenuated” must confront Department of Commerce v. New York and Biden v. Nebraska.
  • Third-party standing in structural-rights disputes: By foregrounding the “indirect violation” pathway from Kowalski v. Tesmer and June Med. Servs. L.L.C. v. Russo, the opinion suggests that when the Government regulates states directly in a way that incidentally affects individuals’ constitutional rights, third-party standing objections require a more careful, fact-specific engagement.
  • Universal injunction disputes and preservation: The ruling underscores that narrowing arguments must be preserved and concretely articulated in the district court; appellate courts may refuse to entertain newly minted tailoring proposals in the expedited stay posture.
  • Birthright citizenship litigation environment: Although not reaching the merits, the opinion’s public-interest discussion frames the high systemic stakes of altering long-settled citizenship recognition practices without a robust merits defense, which may influence how courts approach interim relief in related cases.

IV. Complex Concepts Simplified

  • Preliminary injunction: A temporary court order issued early in a case to prevent likely harm before the court can decide the merits.
  • Stay pending appeal: A pause on a lower court’s order while an appellate court considers the appeal. Under Nken v. Holder, the party requesting a stay must satisfy four equitable factors, with likely success and irreparable harm most important.
  • “Universal” injunction: An injunction that bars the Government from enforcing a challenged policy not only against the plaintiffs, but more broadly (here, effectively nationwide). Courts often assess whether such breadth is necessary to provide “complete relief.”
  • Article III standing: The constitutional requirement that a plaintiff show (i) a concrete injury, (ii) caused by the defendant, and (iii) likely redressable by the court. The First Circuit focused on fiscal injury (loss of federal funds/fees) as a classic concrete injury.
  • Third-party standing: A set of limits on when a plaintiff may argue for someone else’s rights. The court emphasized an accepted pathway: if enforcing the rule against the plaintiff would indirectly violate others’ rights, third-party standing may be allowed.
  • Parens patriae: A doctrine under which a state sues to protect its citizens; states generally cannot sue the federal government in that capacity (South Carolina v. Katzenbach), but the Plaintiff-States relied instead on their own asserted fiscal injuries.
  • Waiver/forfeiture: Courts often will not consider arguments not raised in a timely way (e.g., raised for the first time on reply or on appeal), especially in preliminary-injunction and stay contexts.

V. Conclusion

The First Circuit’s decision denies a stay pending appeal because the Government failed to satisfy Nken v. Holder—most notably by declining to argue that the Executive Order is lawful and by failing to make a strong showing that the Plaintiff-States lack standing. Doctrinally, the opinion strengthens two interim-relief themes: (1) loss of federal funds/fees is a robust basis for state Article III standing under Department of Commerce v. New York and Biden v. Nebraska, and (2) third-party standing objections must engage the Kowalski v. Tesmer/June Med. Servs. L.L.C. v. Russo “indirect violation” pathway when the challenged policy operates directly on governmental actors. Procedurally, it reaffirms that attempts to narrow “universal” injunctions must be properly preserved and concretely presented to the district court.