I Told You So

What Just Happened

Contrary to the views of headline writers who did not go to law school and who suffer from chronic confirmation bias, in the recent case of Trump v. CASA, the Supreme Court opened the door to nationwide injunctions against Trump in cases where plaintiff classes have been certified according to Rule 23 of the Federal Rules of Civil Procedure. 

Today, the first such injunction was granted, by a federal district judge in New Hampshire, in a case spearheaded by the American Civil Liberties Union and its allies. 

The judge “ruled from the bench”—meaning that the formal text of most of his ruling isn’t available, at least currently. (The order certifying the class, however, is found here. As I predicted, Trump’s own executive order does a fine job of defining the class that is being certified.)

The ACLU’s press release reads in part,

CONCORD, N.H. — A federal court in New Hampshire today blocked President Trump’s executive order restricting birthright citizenship and certified a nationwide class that protects the citizenship rights of all children born on U.S. soil. The case is Barbara v. Donald J. Trump.

The ruling stems from a nationwide class-action lawsuit filed June 27, immediately after a Supreme Court ruling that potentially opened the door for partial enforcement of the executive order.

The American Civil Liberties Union, ACLU of New Hampshire, ACLU of Maine, ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus, and Democracy Defenders Fund brought the challenge on behalf of a proposed class of babies subject to the executive order. It seeks to protect all impacted families in the country in the wake of the Supreme Court’s recent decision in Trump v. CASA, which directed courts to consider narrowing nationwide protection that had been provided in the first round of challenges to the executive order attacking birthright citizenship.

The groups were in court today successfully arguing for a preliminary injunction and nationwide class certification. The ruling was made from the bench.

In granting the request, the court provided for a 7-day delay so that the government — which argued to the Supreme Court that a nationwide class was the appropriate way to seek nationwide protection in the birthright cases — could nevertheless try to get the First Circuit Court of Appeals to stay the relief, if it decides to pursue that option. Even with a 7-day delay, the ruling will go into effect well before July 27, when partial implementation of the unconstitutional order might otherwise have begun.

“This ruling is a huge victory and will help protect the citizenship of all children born in the United States, as the Constitution intended,” said Cody Wofsy, deputy director of the ACLU’s Immigrant’s Rights Project, who argued the case.“We are fighting to ensure President Trump doesn’t trample on the citizenship rights of one single child.”

What Happens Next?

Team Trump could wait for more decisions along the same lines by district courts around the country, in order to forum shop for the best appellate court. More likely, I think, is that they will appeal to the federal appellate court in Boston, which will quickly rule in the ACLU’s favor, so that the Supreme Court will have to address the merits of birthright citizenship very soon. 

And what will happen then?

Well, maybe Justices Thomas and/or Alito and/or Gorsuch will quibble with whether a class should have been certified—or raise some other arcane, pettifogging objection to jurisdiction. Or maybe one of them will receive a revelation from the Angel Moroni that all class actions are unconstitutional. 

You never can tell. But I am confident that at least five of the justices will continue to adhere to language of the Fourteenth Amendment and to reject Trump’s interpretation, just as the Supreme Court ruled back in 1898 in the Wong Kim Ark case. 

And what will happen after that?

What will happen after that is that large pieces of shit will hit the fan.