Firm Represents Originalist Scholars as Amici in First Circuit's Reaffirmance of Birthright Citizenship
- benedictbrendan
- Oct 8
- 2 min read
Updated: Oct 9
On October 3, 2025, in a pair of opinions, the U.S. Court of Appeals for the First Circuit affirmed in part the entry of preliminary injunctions against enforcement of Executive Order No. 14160, which purports not to recognize the citizenship of children born in the United States to certain categories of aliens.
The First Circuit gave its reasoning reaffirming the general validity of birthright citizenship at length in Doe v. Trump, Nos. 25-1169, 25-1170. The firm represented originalist scholars Evan Bernick and Jed H. Shugerman as amici curiae supporting plaintiffs in a companion case, New Hampshire Indonesian Community Support v. Trump, No. 25-1348, which adopted Doe's reasoning and was issued at the same time.
In Doe, the First Circuit adopted several arguments advanced in the originalist brief from the companion case. As the amici brief noted (at 25), several sources the Government relied on "were cited in . . . dissent" in the Supreme Court's decision in Wong Kim Ark. The First Circuit agreed that "those treatises" and sources of "administrative practice" were "relied on by the dissent in Wong Kim Ark" (slip op. at 84) and were unpersuasive.
The amici brief also rebutted (at 19) the Government's reliance on Senator Benjamin Wade's proposed language for the Fourteenth Amendment, pointing out that he excepted only "children of foreign ministers" from the general rule that all those born in the United States are citizens. The First Circuit agreed in Doe (slip op. at 81 n.24).
As the First Circuit concluded (Doe slip op. at 100) (internal citations omitted):
The "lessons of history" thus give us every reason to be wary of now blessing this most recent effort to break with our established tradition of recognizing birthright citizenship and to make citizenship depend on the actions of one's parents rather than -- in all but the rarest of circumstances -- the simple fact of being born in the United States. Nor does the text of the Fourteenth Amendment, which countermanded our most infamous attempt to break with that tradition, permit us to bless this effort, any more than does the Supreme Court's interpretation of that amendment in Wong Kim Ark, the many related precedents that have followed it, or Congress's 1952 statute writing that amendment's words in the U.S. Code.
The Trump administration has already sought the Supreme Court's review of the birthright citizenship issue in a related case.
Read the amici brief below and the First Circuit's opinions in Doe here and New Hampshire Indonesian Community Support here.