In the aftermath of the Supreme Court’s ruling in Trump v. CASA, barring nationwide injunctions, most informed observers expected courts to instead certify broad class actions against Donald Trump’s birthright citizenship executive order (which denies birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas). That’s precisely what happened today.
Federal District Judge Joseph Laplante has certified a class consisting of all current and future children who stand to lose citizenship rights because of Trump’s order, and issued a preliminary injunction barring enforcement of the order against all members of that class.
Obviously, the administration will appeal the class certification and injunction, and the issue could well get back to the Supreme Court. Perhaps sooner rather than latter.
I am no class action expert. But, for what little it’s worth, I think this class does meet the Rule 23 requirements of numerosity (the class has hundreds of thousands of members), commonality (the class members all have an obvious common interest in getting citizenship, thereby avoiding potential deportation), typicality (the class representatives litigating the case seem to be typical of the class as a whole), and adequacy of representation (the ACLU lawyers litigating the case seem more than adequate, as far as I can tell). But, again, I am no class action expert, so this opinion may not be worth much more than the money you’re (not) paying to read it!
Even if this class action succeeds, I remain convinced that Trump v. CASA was a bad decision. The class action certification remedy may not be so readily available in some other important cases involving large-scale illegality by federal, state, or local governments.
But assume I am wrong about that. Assume that class actions or some other comparably broad remedy will be feasible in every situation where a nationwide injunction might have been available before. In that event, I would wonder what the point of getting rid of nationwide injunctions was in the first place, as litigants would still be able to get essentially the same remedy by another name. If basically the same remedy is in fact available to same degree as before, I say it’s better to just call a spade a spade, than to pretend your spade is actually a shovel.
Today’s ruling, like the Supreme Court decision, does not address the substantive legality of Trump’s order. This same district court had already ruled that the order is unconstitutional, and the Supreme Court’s decision did not overturn that, but only addressed the issue of the scope of the available remedy.
For my explanations of why children of undocumented immigrants are constitutionally entitled to birthright citizenship and criticisms of some standard contrary arguments, see here and here.
UPDATE: Judge Laplante’s opinion justifying the class action certification is available here. His analysis of the various class action factors strikes me as compelling. But, again, this is not my area of expertise.
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