Trump's birthright citizenship ban faces new problem: Class actions

Business Standard

a day ago

When the Supreme Court ruled in President Trump's favor two weeks ago in a case arising from his efforts to ban birthright citizenship, he called the decision 'a monumental victory.'
But the victory may turn out to be short-lived.
To be sure, the 6-to-3 ruling severely limited a key tool federal trial judges had used in checking executive power — universal injunctions that applied not only to the plaintiffs but also to everyone else affected by the challenged program nationwide.
But the justices made clear that another important tool remained available — class actions, which let people facing a common problem band together in a single lawsuit to obtain nationwide relief.
The differences between the two procedures may at first blush seem technical. But universal injunctions have long been criticized across the ideological spectrum as a judicial power grab without a basis in law. Class actions, on the other hand, are an established mechanism whose requirements are set out in detail in the Federal Rules of Civil Procedure.
Judge Joseph N. Laplante, a federal judge in New Hampshire, embraced class actions on Thursday, opening a new front in the battle to deny Mr. Trump's effort to redefine who can become a citizen. The move was also a new sign that Mr. Trump's win at the Supreme Court may turn out to be less lasting than it at first appeared.
The judge provisionally certified a class of all children born to parents who are in the United States temporarily or without authorization. Then he entered a preliminary injunction in their favor barring the enforcement of Mr. Trump's ban on birthright citizenship. It applied nationwide.
That means Mr. Trump's executive order, which has never come into effect and may never will, remains blocked. The ban would upend the conventional understanding of the first sentence of the 14th Amendment, adopted in 1868: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.'
A White House spokesman called Judge Laplante's ruling 'an obvious and unlawful attempt to circumvent the Supreme Court's clear order against universal relief.'
But the court's decision specifically contemplated the alternative, and it gave challengers 30 days to pursue it and other options.
The key difference between universal injunctions and class actions is that the former is a shortcut that benefits parties and bystanders alike, letting judges provide relief to people who are not before them.
A class action, by contrast, brings into the lawsuit everyone similarly situated to the lead plaintiffs, but only if they meet criteria detailed in the rules. Judges must certify a class based on several factors in the rules. If they do, their rulings apply to all class members.
Legal experts said class actions are well suited to address questions like the one posed by the proposed birthright citizenship ban.
'The goal of the class action is to generate a single answer to a recurring problem,' said William B. Rubenstein, a law professor at Harvard and the author of a treatise on class actions. 'And there's at least one legal question in this case that applies to everybody across the country, which is the constitutionality of the approach.'
Mila Sohoni, a law professor at Stanford, said that 'even after the Supreme Court's recent restriction on universal injunctions, the class action remains as an essential mechanism for courts to address constitutional violations of this scope and urgency.'
After an appeals court considers the matter, the New Hampshire case will very likely head to the Supreme Court. The court has so far not addressed whether Mr. Trump's executive order is constitutional.
The Trump administration may well ask the justices to take up only the threshold issue of whether the mechanism the judge used is legal while again ducking the more fundamental constitutional question.
There is reason to think that this time the justices will say the tool used to block the ban was lawful.
When the birthright citizenship case was argued in May, several of the justices seemed taken by the idea that class actions have a role to play. Class actions were, Professor Sohoni wrote in a newsletter at the time, 'the breakout star of the oral argument.'
Class actions came up at least 35 times. Justice Brett M. Kavanaugh said they could provide 'a mechanism to do what's needed here in terms of getting relief to people.'
He added that even a putative class action — one merely proposed by the plaintiffs and untested by the courts — may be enough to allow a court to issue an injunction blocking a government program.
It was not clear at the time why that particular issue was on his mind.
But it turned out that the justices were at work on an order concerning the administration's efforts to deport Venezuelan migrants using the Alien Enemies Act, an 18th-century wartime law. The order, issued the day after the argument, did precisely what Justice Kavanaugh had contemplated.
The majority barred the migrants' removal, explaining that 'courts may issue temporary relief to a putative class,' here two detainees said to be members of Tren de Aragua, a violent gang, and 'similarly situated detainees in the Northern District of Texas.' The court shielded them from deportation without deciding 'whether a class should be certified.'
The move was unusual because courts do not generally provide a class of people relief until they have considered who belongs in the class.
It did not sit well with Justice Samuel A. Alito Jr., who filed a dissent joined by Justice Clarence Thomas. 'The federal rules do not permit such a shortcut,' he wrote.
Last month, when the court issued its decision in the birthright citizenship case, Justice Alito returned to the fray. In a concurring opinion joined by Justice Thomas, he warned that the lower courts should not simply replace universal injunctions with class actions. 'District courts should not view today's decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors' of class-action rules, he wrote.
'Otherwise,' he added, 'the universal injunction will return from the grave under the guise of 'nationwide class relief,' and today's decision will be of little more than minor academic interest.'
Brian Fitzpatrick, a law professor at Vanderbilt and the author of 'The Conservative Case for Class Actions,' said he had 'grave misgivings about these quick-and-dirty provisional class certifications,' adding that 'they recreate all of the problems of universal injunctions under a different name.'
'But,' he added, 'the Supreme Court has already blessed this approach by doing it itself,' in the Venezuelan migrant case.
'So the district judge in New Hampshire can certainly be forgiven,' Professor Fitzpatrick said. 'Indeed, the judge was more conscientious than the court.'
Judge Laplante, who was appointed by President George W. Bush, issued a 38-page decision on Thursday methodically analyzing the four factors required by the rules governing class actions and provisionally concluding they supported a national class.
The class was sufficiently numerous, he wrote, as 'the executive order would deny citizenship to thousands of children.' The case presented a common question 'about the constitutionality and lawfulness of the executive order.' The lead plaintiffs' claims are typical of those of the rest of the class, he wrote. And their lawyers, including ones from the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund, the judge wrote, 'have sufficient experience and qualifications to serve as class counsel.'
Should the Supreme Court rule that the constitutionality of Mr. Trump's birthright citizenship order can be tested in a class action, it will represent a shift, as the court has sometimes been hostile to such suits.
In 2011, for instance, it threw out an enormous employment discrimination class action against Walmart that had sought billions of dollars on behalf of as many as 1.5 million female workers, saying that the