`
`No. 25A319
`IN THE
`Supreme Court of the United States
`
`DONALD J. TRUMP, et al.,
`Applicants,
`––– v. –––
`ASHTON ORR, et al.,
` Respondents.
`
`TO THE HONORABLE KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE
`SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE FIRST CIRCUIT
`RESPONDENTS’ OPPOSITION TO APPLICATION FOR STAY
`
`Cecillia D. Wang
`Evelyn Danforth-Scott
`AMERICAN CIVIL LIBERTIES UNION
`FOUNDATION
`425 California Street, Suite 700
`San Francisco, CA 94104
`
`Jessie J. Rossman
`A
`MERICAN CIVIL LIBERTIES UNION
`FOUNDATION OF MASSACHUSETTS,
`INC.
`One Center Plaza, Suite 850
`Boston, MA 02108
`
`Chase B. Strangio
`Counsel of Record
`Jon W. Davidson
`James D. Esseks
`Li Nowlin-Sohl
`Sruti J. Swaminathan
`Malita V. Picasso
`A
`MERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`125 Broad Street
`New York, NY 10004
`(212) 549-2500
`cstrangio@aclu.org
`
`Isaac D. Chaput
`COVINGTON & BURLING LLP
`Salesforce Tower
`415 Mission Street, Suite 5400
`San Francisco, CA 94105
`
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`TABLE OF CONTENTS
`INTRODUCTION .......................................................................................................... 1
`STATEMENT ................................................................................................................. 5
`A. Factual Background ................................................................................. 5
`1. The history of sex markers on passports. ..................................... 5
`2. The Passport Policy. ...................................................................... 5
`B. Procedural Background ............................................................................ 6
`1. The district court enjoins the Passport Policy as applied to
`named Plaintiffs. ........................................................................... 6
`2. The district court certifies classes and enters class -wide
`injunctive relief. ........................................................................... 10
`3. The lower courts reject the government’s requests for a
`stay of the injunction pending appeal. ........................................ 11
`ARGUMENT ................................................................................................................ 12
`I. THE GOVERNMENT HAS NOT MADE A STRONG SHOWING THAT
`IT IS LIKELY TO SUCCEED ON THE MERITS. .......................................... 12
`A. The Government’s Invocation of “Foreign Affairs” Is Unavailing. ....... 13
`B. The District Court Correctly Held that the Passport Policy Likely
`Violates the APA. ................................................................................... 16
`1. The Passport Policy is subject to APA review. ........................... 17
`2. The Passport Policy is arbitrary and capricious. ....................... 22
`C. The District Court Correctly Found that the Passport Policy
`Likely Violates Equal Protection. .......................................................... 25
`1. The Passport Policy imposes sex classifications, triggering
`heightened scrutiny. .................................................................... 25
`2. The Passport Policy fails heightened scrutiny. .......................... 28
`3. The Passport Policy fails rational basis review. ......................... 31
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`4. The district court correctly found that the Passport Policy
`was likely motivated by animus. ................................................. 32
`II. THE REMAINING STAY FACTORS FAVOR PLAINTIFFS. ........................ 36
`A. Plaintiffs Face Serious Irreparable Injuries If a Stay Upends the
`Status Quo. ............................................................................................. 36
`B. The Government Has Not Shown a Reasonable Probability of
`Certiorari. ............................................................................................... 39
`CONCLUSION ............................................................................................................. 40
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`iv
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`TABLE OF AUTHORITIES
`Cases Page(s)
`Am. Ins. Assn. v Garamendi,
`539 U.S. 396 (2003) ................................................................................................ 16
`Anderson v. City of Bessemer City, N.C.,
`470 U.S. 564 (1985) ................................................................................................ 32
`Aptheker v. Sec’y of State,
`378 U.S. 500 (1964) ................................................................................................ 14
`Biden v. Texas,
`597 U.S. 785 (2022) .................................................................................... 18, 23, 24
`Bostock v. Clayton Cnty., Georgia,
`590 U.S. 644 (2020) ............................................................................................ 4, 28
`Bowen v. Mich. Acad. of Fam. Physicians,
`476 U.S. 667 (1986) ................................................................................................ 18
`Chamber of Com. v. Reich,
`74 F.3d 1322 (D.C. Cir. 1996) ................................................................................ 18
`Citizens to Pres. Overton Park, Inc. v. Volpe,
`401 U.S. 402 (1971) ................................................................................................ 23
`City of Cleburne, Tex. v. Cleburne Living Ctr.,
`473 U.S. 432 (1985) ................................................................................................ 32
`Craig v. Boren,
`429 U.S. 190 (1976) ................................................................................................ 30
`Dep’t of Agric. v. Moreno,
`413 U.S. 528 (1973) ................................................................................................ 32
`Dep’t of Com. v. New York,
`588 U.S. 752 (2019) ................................................................................................ 14
`Encino Motorcars, LLC v. Navarro,
`579 U.S. 211 (2016) ................................................................................................ 22
`FCC v. Prometheus Radio Project,
`592 U.S. 414 (2021) ................................................................................................ 22
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`v
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`Franklin v. Massachusetts,
`505 U.S. 788 (1992) .................................................................................... 19, 20, 21
`Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
`561 U.S. 477 (2010) ................................................................................................ 20
`Friends of the Earth, Inc. v. Laidlaw Env. Servs. (TOC), Inc.,
`528 U.S. 167 (2000) ................................................................................................ 39
`Fuld v. Palestine Liberation Org.,
`606 U.S. 1 (2025) .................................................................................................... 16
`Garland v. Cargill,
`602 U.S. 406 (2024) ................................................................................................ 18
`Goldman v. Weinberger,
`475 U.S. 503 (1986) ................................................................................................ 34
`J.E.B. v. Alabama ex rel. T.B.,
`511 U.S. 127 (1994) ................................................................................................ 26
`Japan Whaling Ass’n v. Am. Cetacean Soc.,
`478 U.S. 221 (1986) ................................................................................................ 13
`Kent v. Dulles,
`357 U.S. 116 (1958) .......................................................................................... 14, 39
`Kleindienst v. Mandel,
`408 U.S. 753 (1972) ................................................................................................ 35
`Loper Bright Enters. v. Raimondo,
`603 U.S. 369 (2024) ................................................................................................ 17
`Loving v. Virginia,
`388 U.S. 1 (1967) .................................................................................................... 27
`Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n,
`584 U.S. 617 (2018) .................................................................................................. 4
`Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State
`Farm Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) ...................................................................................... 17, 22, 23
`Muth v. Voe,
`691 S.W.3d 93 (Tex. App. 2024) ............................................................................. 37
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`NetChoice, LLC v. Fitch,
`145 S. Ct. 2658 (2025) ............................................................................................ 12
`New York v. Trump,
`133 F.4th 51 (1st Cir. 2025) ................................................................................... 18
`Nken v. Holder,
`556 U.S. 418 (2009) ................................................................................................ 12
`Powers v. Ohio,
`499 U.S. 400 (1991) ................................................................................................ 27
`Romer v. Evans,
`517 U.S. 620 (1996) .......................................................................................... 32, 33
`Rostker v. Goldberg,
`453 U.S. 57 (1981) .................................................................................................. 34
`Sessions v. Morales-Santana,
`582 U.S. 47 (2017) ............................................................................................ 25, 26
`Shachtman v. Dulles,
`225 F.2d 938 (D.C. Cir. 1955) ................................................................................ 14
`State v. Su,
`121 F.4th 1 (9th Cir. 2024) ............................................................................... 18, 19
`Teva Pharms. USA, Inc. v. Sandoz, Inc.,
`572 U.S. 1301 (2014) .............................................................................................. 12
`Trump v. Hawai‘i,
`585 U.S. 667 (2018) .................................................................................... 34, 35, 36
`Trump v. Wilcox,
`605 U.S. ___, slip. op. (2025) .................................................................................. 24
`United States v. Curtiss-Wright Export Corp.,
`299 U.S. 304 (1936) ................................................................................................ 16
`United States v. Shilling,
`No. 24A1030, 2025 WL 1300282 (U.S. May 6, 2025) ............................................ 34
`United States v. Skrmetti,
`145 S. Ct. 1816 (2025) .......................................................3, 4, 11, 12, 25, 27, 33, 40
`United States v. Virginia,
`518 U.S. 515 (1996) .................................................................................... 28, 29, 31
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`United States v. Windsor,
`570 U.S. 744 (2013) .......................................................................................... 32, 36
`Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
`429 U.S. 252 (1977) ................................................................................................ 34
`Wengler v. Druggists Mut. Ins. Co.,
`446 U.S. 142 (1980) ................................................................................................ 30
`Youngstown Sheet & Tube Co. v. Sawyer,
`343 U.S. 579 (1952) .......................................................................................... 14, 15
`Zivotofsky v. Clinton,
`566 U.S. 189 (2012) .......................................................................................... 13, 14
`Zivotofsky v. Kerry,
`576 U.S. 1 (2015) .................................................................................................... 15
`Zzyym v. Pompeo,
`958 F.3d 1014 (10th Cir. 2020) .............................................................................. 14
`Statutes
`5 U.S.C. § 704 ......................................................................................................... 17, 19
`8 U.S.C. § 1185 ............................................................................................................. 38
`22 U.S.C. § 211a ..................................................................................................... 20, 24
`44 U.S.C. § 3506 ............................................................................................................. 8
`Other Autorities
`22 C.F.R. § 51.1 .............................................................................................................. 3
`Exec. Order 11295, 31 Fed. Reg. 10603 (Aug. 9, 1966) ........................................ 20, 21
`Exec. Order 14168, 90 Fed. Reg. 8615 (Jan. 20, 2025) ........................... 5, 6, 21, 29, 33
`Exec. Order 14183, 90 Fed. Reg. 8757 (Feb. 3, 2025) ................................................. 33
`Exec. Order 14190, 90 Fed. Reg. 8853 (Feb. 3, 2025) ................................................. 33
`Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245,
`2351 (2001) ............................................................................................................. 19
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`1
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`INTRODUCTION
`The Plaintiffs in this suit seek the same thing millions of Americans take for
`granted: passport s that allow them to travel without fear of misidentification,
`harassment, or violence. By classifying people based on sex assigned at birth and
`exclusively issuing sex markers on passports based on that sex classification, the
`State Department deprives Plaintiffs of a usable identification document and the
`ability to travel safely . That is an abrupt reversal of more than thirty years of
`Department policy, across five administrations, permitting changes to passport sex
`markers to align with individuals’ actual and apparent gender identity , and it is a
`reversal of years of policy permitting selection of an unspecified (“X”) sex marker, as
`many U.S. states and other countries permit on their identity documents.
`This new policy puts transgender, nonbinary, and intersex people in potential
`danger whenever they use a passport, as the district court found based on unrebutted
`evidence. It is arbitrary and capricious in violation of the Administrative Procedure
`Act (“APA”). It also classifies based on sex and cannot survive heightened scrutiny.
`Under any standard of re view, it violates equal protection because it does not serve
`any legitimate governmental interest and was driven by impermissible animus. And
`so, in reasoned opinions that sometimes agreed with Plaintiffs, sometimes agreed
`with the government , but always carefully and faithfully applied this Court’s
`precedents, the district court enjoined enforcement of the policy as applied to
`members of two certified classes of transgender, intersex, and nonbinary people .
` The government’s stay application provides no reason to upend , in an
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`emergency posture, the status quo that has been in place since the June 17, 2025
`class-wide injunction , particularly when this Court may address questions the
`government raises here on its merits docket this term, in Little v. Hecox, No. 24-38,
`and West Virginia v. B.P.J., No. 24-43.
`At the threshold, the government has not demonstrated a likelihood of success
`on the merits on any of the three independent bases for the injunction, much less on
`all of them as required to obtain the extraordinary relief of a stay.
`Defendants argue that their Passport Policy is not reviewable because it
`implements an executive order that, they say, is based on plenary presidential power.
`But that contravenes this Court’s precedents addressing the constitutionality of
`passport restrictions , notwithstanding the President’s asserted foreign -affairs
`prerogatives. Moreover, the government has never explained how passport sex
`markers that align with gender identity , including the sex the person lives as and
`outwardly expresses, could possibly affect foreign relations —when the challenged
`policy undermines the very purpose of passports as identity documents that officials
`check against the bearer’s appearance. The government’s argument would create a
`significant, unwarranted loophole in the APA’s statutory requirements.
`The Passport Policy is arbitrary and capricious and therefore violates the APA
`because it was adopted and implemented with no reasoned decision -making and no
`reasonable explanation—in violation of basic administrative-law requirements. The
`government does not contest the district court’s findings on those points , instead
`relying solely on its misguided argument regarding presidential power.
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`On the equal protection claims, the district court’s order faithfully applies this
`Court’s precedents to the record below. The Passport Policy violates equal protection
`in two distinct ways. First, the Passport Policy discriminates based on sex. It facially
`classifies on the basis of sex assigned at birth, requiring everyone assigned male at
`birth to always have an M designation on their passport and everyone assigned
`female at birth to always have an F. Accordingly, the policy must survive heightened
`scrutiny. T he government failed to show that the policy serves an important
`government interest. Because t he government does not defend the policy under
`heightened scrutiny, a stay can be denied on this basis alone.
`Second, t he Passport Policy fails any level of constitutional review for two
`independent reasons: (1) It does not pass muster even under rational basis review
`because it irrationally undermines the very purpose of passports—identifying a U.S.
`citizen when they travel , see 22 C.F.R. § 51.1; and (2) it is motivated by anti -
`transgender animus . T he district court made extensive factual findings
`demonstrating animus. Indeed, the government all but admitted below an intent to
`harm transgender people , arguing that the “outing of transgender, intersex, and
`nonbinary individuals” was “core to the Policy.” Resp. App. 171a (quoting Resp. App.
`80a). Here, the government ignores almost all the evidence the district court relied
`on and inappropriately asks this Court to consider extra-record evidence or simply
`second-guess the district court’s factual findings.
`This Court’s decision in United States v. Skrmetti, 145 S. Ct. 1816 (2025), does
`not change the government’s likelihood of success on the merits here. The injunction
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`is entirely consistent with the Court’s reasoning in Skrmetti because the P assport
`Policy facially classifies based on sex rather than medical use and because the policy
`is irrational and was motivated by animus against transgender people.
`The government fails to meet the other stay factors as well. The only
`irreparable injury it points to is, once more, an amorphous reference to foreign affairs.
`This is plain misdirection: This Court has held that the President is obligated to
`follow statutes and the Constitution when exercising foreign -affairs powers. On the
`other side of the scale, the courts below found that the class members protected by
`the injunction would suffer grave, concrete injuries if it were stayed.
`This Court and individual Justices have made clear that transgender people
`“cannot be treated as social outcasts or as inferior in dignity and worth.” Bostock v.
`Clayton Cnty., Georgia, 590 U.S. 644, 780 (2020) (Kavanaugh, J., dissenting) (quoting
`Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 631 (2018)). But the
`Department’s policy does just that: I t is aimed at the “rejection of the identity of an
`entire group—transgender Americans—who have always existed.” SG App. 42a. And
`it exposes them to danger every time they use their passports. This Court should not
`allow the preliminary injunction’s protections against such harms to be swept aside
`in the government ’s haste to signal that one group of its citizens is unequal to the
`rest. The government’s stay application should be denied.
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`STATEMENT
`A. Factual Background
`1. The history of sex markers on passports.
`For the first two hundred years of U.S. history, passports did not have sex
`markers. U.S. passports first featured sex markers in 1976. SG App. 7a ¶ 5.
`Contrary to the government’s suggestion that the Passport Policy reverses a recent
`policy change, the Department has permitted some form of self-selection of, or change
`to, sex markers on passports for over thirty years—more than half the time passports
`have had sex markers . I n 1992, the Department first promulgated a policy that
`permitted applicants to choose a sex marker different from their sex assigned at birth.
`See SG App. 18a–20a. Applicants seeking to change their sex marker initially were
`required to submit various forms of medical documentation , but such requirements
`were eventually eliminated in favor of full self-selection. Id. In 2021, the Department
`joined many other countries and U.S. states in permitting X sex markers on
`passports, a change particularly important to some intersex and nonbinary
`Americans. See id.1
`2. The Passport Policy.
`On his first day in office, the President issued Executive Order 14168, 90 Fed.
`Reg. 8615 ( Jan. 20, 2025) , entitled “Defending Women from Gender Ideology
`Extremism and Restoring Biological Truth to the Federal Government” (the “EO”).
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`1 International technical guidelines on passport conformity that permit M, F, and X
`sex markers were adopted in 1980. See SG App. 6a–7a¶ 4; Resp. App. 205a ¶ 82 &
`n.12.
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`See SG App. 1a–4a. For purposes of federal law and administration policy, t he EO
`purports to define sex by reference to the capacity to produce a large or small
`reproductive cell “at conception.” EO § 2; see SG App. 22a.2 Only two days later, the
`Department began implementing a new policy removing the option of a passport with
`a sex marker reflecting the applicant’s gender identity and t he option to obtain a
`passport with an X sex marker. Instead of using the EO’s definition of sex, however,
`the Department required that passports reflect an applicant’s sex assigned at birth
`(the “Passport Policy”) because, as the Department recognized below, it is impossible
`to determine sex on the basis set forth in the EO. See SG App. 11a ¶¶ 14–15.
`B. Procedural Background
`1. The district court enjoins the Passport P olicy as applied
`to named Plaintiffs.
`Shortly a fter the Department announced its new P assport Policy, seven
`transgender or nonbinary Plaintiffs filed this class action on behalf of themselves and
`others similarly situated. Five more named Plaintiffs, including intersex individuals,
`subsequently joined . The named Plaintiffs —and the classes they represent —are
`transgender, intersex, and nonbinary Americans who want the same thing as their
`fellow citizens: usable passports that enable them to travel without harassment or
`violence. Prior to the injunction’s entry, each of them had or was considering travel
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`2 The evidence in this case demonstrates that the EO’s definition of sex at conception
`contradicts basic biology. See Resp. App. 81a–82a (“[E]mbryos have undifferentiated
`reproductive cells during the period immediately following conception. Further, this
`definition ignores the biological reality that some intersex individuals do not at
`conception, and may never, belong to a sex that prod uces either a large or small
`reproductive cell.” (citations omitted) (citing expert evidence at Resp. App. 104a,
`110a)).
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`plans requiring a passport. One Plaintiff needed to travel abroad for a medical
`procedure and had to postpone those plans. See Resp. App. 96a. Another needed to
`travel for her work. Id. A third is an American student enrolled at a Canadian
`university. Id. And the others were similarly positioned, forced to forgo other family-,
`work-, or education-related travel. See id.; see also SG App. 63a.
`The Plaintiffs asserted claims for denial of equal protection under the Fifth
`Amendment because the Passport Policy is a sex classification that fails heightened
`scrutiny and was driven by impermissible animus; violation of the Fifth Amendment
`right to travel; violation of the Fifth Amendment right to informational privacy ;
`violation of the First Amendment right against compelled speech ; and (against the
`Department and Secretary of State) violations of the APA based on the Passport
`Policy being (i) arbitrary and capricious, (ii) adopted without observance of procedure
`required by law, and (iii) unconstitutional. See generally Resp. App. 1a– 59a
`(Complaint), 189a–259a (First Amended Complaint).
`On April 18, 2025, the district court granted Plaintiffs’ motion to enjoin
`enforcement of the Passport Policy with respect to all but one Plaintiff. See generally
`SG App. 15a–70a. T he injunction was based on three independent findings of
`Plaintiffs’ likelihood of success on the merits . First , the district court found that
`Plaintiffs were likely to succeed on their claims that the Passport Policy was arbitrary
`and capricious in violation of the APA . See SG App. 47a–60a. Second, it held that
`the Passport Policy classifie s on the basis of sex and that the government failed to
`show it would likely satisfy heightened scrutiny. Id. at 30a–39a Third, it found that
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`the Passport Policy was likely motivated by improper animus towards transgender
`and nonbinary Americans, rendering it invalid under even rational basis review. Id.
`at 40a–46a.
`The district court also found that the change in application forms
`accompanying the Passport Policy likely violated the statutory requirements of the
`Paperwork Reduction Act, 44 U.S.C. § 3506 (“PRA”). See SG App. 58a–60a. Without
`following the procedures required by statute, the Department withdrew the passport
`application forms then in use and replaced them with expired forms that offered only
`M and F sex markers. Id. at 9.
`3
`The unrebutted expert evidence demonstrated that being forced to use
`passports with a sex marker inconsistent with one’s gender identity increases the risk
`that transgender and nonbinary people “experienc[e] harassment or violence when
`traveling, particularly to countries that criminalize transgender expression.” SG
`App. 104a. That uncontradicted evidence demonstrates that having a passport with
`a sex marker discordant with the bearer’s gender identity doubles the risk of “suicidal
`ideation” and incr eases the risk of “serious psychological distress.” Id . A passport
`with a sex mark er that does not align with an individual’s gender identity can also
`interfere with treating gender dysphoria. Id. These risks have led many
`transgender, nonbinary, and intersex applicants to forgo international travel plans.
`Id. at 105a. By contrast, when an applicant who is transgender, nonbinary, or
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`3 Belatedly, the Department issued a 30-day comment notice announcing the update
`and release of new forms that reflect the Passport Policy , SG App. 23a, which still
`failed to comply with the PRA.
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`intersex receives identity documents that align with their gender identity, the
`evidence demonstrates that the applicant is “significantly less likely” to experience
`these harms and faces fewer obstacles in medical treatment. Id. at 104a.
`The district court found that six n amed Plaintiffs faced irreparable injuries
`because they did not possess passports with sex markers that aligned with their
`respective gender identity. See SG App. 61a–64a.4 It determined the Passport Policy
`forced the Plaintiffs to either travel with passports that exposed them to
`misidentification, harassment, and violence, or not travel at all. See id. at 60a–63a.
`Many of the named Plaintiffs have in fact suffer ed such harms, including
`harassment and mistreatment as a result of having sex markers on identity
`documents that did not match their gender identity. See id. at 62a–63. One was
`“accused by TSA agents of presenting a ‘fake identification document’ because his
`[prior] passport bore a female sex marker whereas his driver’s license bore a male sex
`marker.” Id. Another was “detained by TSA agents and strip searched when she
`presented a driver’s license displaying her sex assigned at birth.” Id. And a third
`experienced “‘significant harassment’ when airport employees noticed the disjunction
`between her gender expression and the sex marker on her driver’s license, including
`pat downs by TSA agents seeking to confirm her gender.” Id.
`Finally, the district court found that the balance of the equities and public
`interest favored Plaintiffs because, among other things, the harms they faced were
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`4 The seventh Plaintiff possesses a valid passport that would not expire for several
`years, so the district court thought it was unlikely he would face irreparable injury
`“prior to the full adjudication of this case.” SG App. 64a.
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`immediate and grave, while the government’s only asserted burdens were
`unsupported by evidence . Indeed, there was no “ evidence that the [] Department’s
`functioning was impaired during the nearly three years that it processed and issued
`passports in precisely the manner requested by the plaintiffs.” Id. at 65a.
`2. The district court certifies classes and e nters class-wide
`injunctive relief.
`On June 17, 2025, the district court granted Plaintiffs’ motion for class
`certification, certifying two classes, one for those who sought M or F markers and one
`for those who sought X markers . See SG App. 111a. The government has not
`appealed the class c ertification order. Once the classes were certifi ed, the district
`court extended the injunction to the classes. See id. at 112a.5 The government did
`not dispute that the same likelihood -of-success analysis applied to the class -based
`relief as for the individual relief , and the district court found that the classes were
`likely to succeed on the merits of their APA and equal protection claims . See id. at
`100a–101a. The district court also found that the classes faced the same irreparable
`injuries as the named P laintiffs—including increased risk of harassment and
`violence—based on uncontested expert evidence of class -wide harms and
`representative evidence from the class representatives that the district court found
`likely to apply to all class members. See id. at 101a–107a. Finally, the district court
`found that the balance of equities and public interest favored class -wide relief,
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`5 The district court extended the injunction to a Preliminary Injunction Class of class
`members who, essentially, lacked a valid passport that aligned with their gender
`identity or would soon have such a passport expire. See SG App. 112a–113a ¶ 1. This
`brief refers to the injunction as “class-wide” or applying “to the classes.”
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`rejecting the government’s vague invocation of the Executive’s foreign-affairs power.
`See id. at 107a–110a.
`3. The lower courts reject the government’s requests for a
`stay of the injunction pending appeal.
`Rather than promptly seeking a stay pending appeal, the Department
`represented that it was fully implementing the injunction. See id. at 118a–121a
`¶¶ 8–15. On July 9, 2025—three weeks after the district court entered the class-wide
`preliminary injunction—the government moved the district court to stay and dissolve
`it. See Resp. App. 309a . T he government argued that this Court’s decision in
`Skrmetti undermined the district court’s holding that the Passport Policy was subject
`to heightened scrutiny. See Resp. App. 314a –315a. The district court denied the
`motion, explaining that, even if Skrmetti affected a portion of the equal protection
`claim (an issue the district court did not reach), the injunction rested on two
`independent bases that would not be impacted: the findings that the Passport Policy
`likely violated the APA and that it likely was motivated by impermissible animus .
`See SG App. 142a–143a.
`A month after the district court’s class -wide injunction went into effect , the
`government filed a stay motion in the First Circuit, largely recycling the Skrmetti
`arguments already rejected by the district court. See Mot. for Stay Pending Appeal,
`Orr v. Trump, No. 25 -1579, at 3 (1st Cir. July 18, 2025). T he First Circuit
`unanimously denied the stay request. See Order on Mot. for Stay Pending Appeal,
`Orr, No. 25-1579 (1st Cir. Sept. 4, 2025).