New Hampshire ruling kicks the issue back to the Supremes.
Frustration over activist judges issuing sweeping national injunctions to block the president’s initiatives culminated in the US Supreme Court decision of Trump v CASA, Inc. The nation’s highest court ruled that US district courts lack the constitutional authority to veto executive orders with broad, nationwide injunctions. Just after the ink dried on the CASA opinion, however, US District Judge Joseph LaPlante of New Hampshire issued an opinion. LaPlante granted a class action certification for all impacted infants and reinstated a nationwide ban blocking the president from enforcing an executive order restricting birthright citizenship.
The Injunction Battle
District courts in CASA heard cases from individual plaintiffs who challenged President Trump’s executive order denying citizenship to people born in the US to parents here illegally (“birthright citizenship”). These courts issued “universal” injunctions that shielded the plaintiffs named in the suits and all such children nationwide (some 150,000 births each year) from being denied citizenship until the cases were resolved.
Universal injunctions are court orders that prohibit the government from enforcing a law, policy, or regulation against not just the specific plaintiffs in a particular court but anyone nationwide. In CASA, the Supreme Court struck down this increasingly common practice in a short-term win for the Trump administration, allowing birthright citizenship to be denied. However, the decision approved such injunctions in class action lawsuits that comply with certain safeguards under the federal rules of procedure.
In response, immigration advocacy groups immediately filed motions in New Hampshire and Maryland, asking the courts to approve a class of birthright plaintiffs—children who could be denied citizenship under the president’s order. Judge LaPlante’s opinion states: “Nothing in this order should be construed as conflicting with the Supreme Court’s ruling in CASA, including its specific holding allowing executive agencies to develop and issue public guidance about the Executive’s plans to implement the Executive Order.” His decision to grant class certification will now doubtless wind its way up to the Supreme Court to decide whether it clashes with CASA.
The CASA decision gives Americans clues as to how the New Hampshire class action and others like it may fare. The Supreme Court carved out an exception in its decision, allowing injunctions for class actions because, unlike broad universal injunctions, class actions are subject to rigorous requirements under Rule 23 of the Federal Rules of Procedure, which safeguard against overreach and abuse. Consequently, Judge LaPlante’s decision painstakingly details why the class of infants he certified for birthright citizenship protection meets the standards of Rule 23.
Class Action Carve-Out
Justice Samuel Alito’s concurring opinion anticipated exactly this development:
“Putting the kibosh on universal injunctions does nothing to disrupt Rule 23’s requirements. Of course, Rule 23 may permit the certification of nationwide classes in some discrete scenarios. But district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, 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.”
President Trump aims to deny US citizenship to children born in the country whose parents are both here illegally. The crucial question for Americans is whether he will be able to do so while the district courts proceed with the cases. Or will he be barred by Judge LaPlante’s injunction on behalf of that class of infants? It was due to concern that the class would not pass muster that Judge LaPlante excluded the children’s parents from class certification. He wrote:
“[T]he harms to the parents of children denied citizenship are (a) not the subject of the specific claims in the complaint, which refer to the Executive Order’s denial of citizenship to children, and (b) would not necessarily meet Rule 23(a)’s requirements for commonality and typicality, as the enumerated harms are factually and legally diverse. Certifying a class of children without their parents eliminates those potential commonality and typicality issues.”
Justice Brett Kavanaugh’s detailed concurrence stressed the importance of these interim decisions for the proper functioning of the nation. Federal court litigation can take years, during which the president or Congress must still act. As applied to birthright citizenship, this could mean thousands of infants being denied – or granted – citizenship while the case winds its way through pretrial motions and discovery on its way to a judicial ruling. It can then be appealed to a US Circuit Court or the US Supreme Court, causing more delays. It is crucial to national policy that any broad birthright citizenship injunction is carefully analyzed.
Anticipating a class action certification such as that of Judge LaPlante, Justice Kavanaugh wrote:
“[P]laintiffs who challenge the legality of a new federal statute or executive action and request preliminary injunctive relief may sometimes seek to proceed by class action under Federal Rule of Civil Procedure 23(b)(2) and ask a court to award preliminary classwide relief…. But importantly, today’s decision will require district courts to follow proper legal procedures when awarding such relief.
“[P]erhaps a district court (or courts) will grant or deny the functional equivalent of a universal injunction—for example, by granting or denying a preliminary injunction to a putative nationwide class under Rule 23(b)(2).”
Birthright Brouhaha Redux
This is exactly what Judge LaPlante has done, leading White House spokesperson Harrison Fields to remark: “Today’s decision is an obvious and unlawful attempt to circumvent the Supreme Court’s clear order against universal relief … This judge’s decision disregards the rule of law by abusing class action certification procedures.”
That will now be the question before the Supreme Court, which will closely scrutinize the Rule 23 requirements for class certification to determine whether Judge LaPlante properly applied its strictures. Justice Kavanaugh emphasized the importance of the US Supreme Court deciding this “interim-status” question regarding birthright citizenship and other important issues. In his concurring opinion, Justice Clarence Thomas also weighed in: “Lower courts should carefully heed this Court’s guidance and cabin their grants of injunctive relief in light of historical equitable limits. If they cannot do so, this Court will continue to be ‘dutybound’ to intervene.”
Justice LaPlante has adroitly kicked the birthright citizenship ball back to the US Supremes. Polls reveal Americans increasingly want illegals deported, and that longstanding support even for legal immigration is beginning to wane. The continued battle over injunctions that protect children of illegals as a birthright may rub yet more salt into this divisive national rift.
Liberty Nation does not endorse candidates, campaigns, or legislation, and this presentation is no endorsement.
