We could see this coming a mile away, no? In Trump v CASA, the Supreme Court sidestepped the issue of Donald Trump's executive order redefining birthright citizenship while taking on district courts for issuing nationwide injunctions. Justice Amy Coney Barrett reminded federal judges at that level that they can only apply rulings to the parties specifically before the bar, not add other parties as they see fit.
However, the ruling did leave one path open for such applications -- the class-action suit. Noting that the archaic "bill of peace" had evolved into the class-action mechanism, Barrett reminded federal judges that such applications had to comply with Rule 23, but that the remedy was still available:
Rule 23’s limits on class actions underscore a significant problem with universal injunctions. A “‘properly conducted class action,’” we have said, “can come about in federal courts in just one way—through the procedure set out in Rule 23.” Smith v. Bayer Corp., 564 U. S. 299, 315 (2011); Fed. Rule Civ. Proc. 23(a) (“One or more members of a class may sue or be sued as representative parties on behalf of all members only if ” Rule 23(a)’s requirements are satisfied (emphasis added)). Yet by forging a shortcut to relief that benefits parties and nonparties alike, universal injunctions circumvent Rule 23’s procedural protections and allow “‘courts to “create de facto class actions at will.”’” Smith, 564 U. S., at 315 (quoting Taylor v. Sturgell, 553 U. S. 880, 901 (2008)). Why bother with a Rule 23 class action when the quick fix of a universal injunction is on the table? Cf. Grupo Mexicano, 527 U. S., at 330–331 (“Why go through the trouble of complying with local attachment and garnishment statutes when this all-purpose prejudgment injunction is available?”). The principal dissent’s suggestion that these suits could have satisfied Rule 23’s requirements simply proves that universal injunctions are a class-action workaround. Post, at 25–26 (opinion of SOTOMAYOR, J.).
Justice Samuel Alito offered a prophetic warning about what would happen with this option in his concurrence:
Second, today’s decision will have very little value if district courts award relief to broadly defined classes without following “Rule 23’s procedural protections” for class certification. Ante, at 14. ...
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.
It only took two weeks for Alito's prophecy to come to pass. A federal judge has created a nationwide class of potential plaintiffs to order a stop to the enforcement of Trump's EO, this time in New Hampshire. Judge Joseph LaPlante stayed his order to allow the Trump administration to appeal, but LaPlante seems confident that he satisfied the loophole left in CASA:
Ruling from the bench, Laplante granted a request from immigration rights attorneys to certify a nationwide class that “will be comprised only of those deprived of citizenship” and issued a preliminary injunction indefinitely blocking Trump’s Day One order from being enforced against born and unborn babies who would be impacted by the policy.
“The preliminary injunction is just not a close call to the court,” Laplante said during a hearing. “The deprivation of US citizenship and an abrupt change of policy that was longstanding … that’s irreparable harm.”
US citizenship, the judge added, “is the greatest privilege that exists in the world.”
The judge, an appointee of former President George W. Bush, said he would pause his order for several days to give the Trump administration time to appeal his decision.
Laporte’s ruling could prove to be a critical bulwark against Trump’s policy as other courts scramble to take a second look at their decisions in light of the Supreme Court’s ruling.
This will not surprise most legal observers across the spectrum. Criticism from conservative legal scholars was tempered by the clear advancement of the ball against nationwide injunctions, but they universally warned that this would lead to an explosion of class actions unless the Supreme Court tightened those requirements.
Presumably, the White House will challenge the injunction on the basis of Rule 23. This gets pretty deep in the weeds, and has plenty of technical requirements, so there may be room for the injunction to get tossed and the Supreme Court to further restrict such strategies. However, at least at first blush, LaPlante may be on solid ground with this particular application:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
Because of the nature of this particular EO and its impact on citizenship recognition, higher courts may end up going along with this grant of class-action status. There are a lot of other requirements in this lengthy rule, but at least through (a) and (b), LaPlante may have an argument.
The Supreme Court will have to end up adjudicating this, and it's entirely possible that the same six justices will see this as a dodge around CASA. However, it does appear that the court wanted to provide a work-around to CASA for extraordinary cases with large-scale application in Barrett's ruling, which prompted Alito's prophetic warning. Don't be too surprised if the court takes a pass on this appeal, and forces the courts to deal with the underlying issue of birthright citizenship definition before taking this up again.
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