The U.S. Justice Department normally employs about ten thousand lawyers. When you fire all the competent ones and replace them with hacks who were lucky to survive the first week of law school, this is what you get.
A couple of days ago, on July 8, the Supreme Court issued its ruling in Trump v. American Federation of Government Employees. There was a two-paragraph unsigned decision by eight of the nine justices, there was a short concurring opinion by Justice Sotomayor explaining why she went along with the conservatives on this one. (Justice Kagan, who also went along with the conservatives but didn’t say anything on her own, presumably agreed with Justice Sotomayor.) And there was a lengthy and strong dissent by Justice Jackson.
The case involved Trump Executive Order 14210, dated February 11. You can read it here—and it might be a good idea to take a gander, because you will see that it orders the executive agencies to develop some plans, and to do so in accordance with applicable law.
Now Team Trump has some pretty screwy notions about what applicable law requires and doesn’t require. And the plans to be developed—essentially, schemes for a massive reduction in the federal workforce—would call for very unwise and very probably illegal actions to be taken.
Still, they were just plans. And the question before the Court was whether Trump was likely to win in his claim that the Constitution doesn’t prevent him from making plans—plans that he claims will be in accord with applicable law.
As I said, eight justices—two liberals, three wingnuts, and the three judges in what passes these days for the middle—all agreed that “The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order …, not on any assessment of the plans themselves. Those plans are not before this Court.”
In the Wake of the Decision
A number of lawsuits involving specific federal agencies remain ongoing. In a couple of cases, Trump’s plans have been blocked, and the validity of those injunctions was not before the Supreme Court this week. Much additional legal activity will surely follow.
Meanwhile, a plethora of catastrophizing headlines scream that the Supreme Court has given Trump the green light to fire federal workers.
True—but misleadingly incomplete. What they have actually done is to give Trump the green light to try to institute a massive reduction in force, and to do it as fast as they can, before litigation catches up with them. That said, there is also a green light for courts to enjoin the hell out of RIFs in specific agencies, if the RIFs don’t comply with a whole lot of legal rules, including the requirement that Congress be consulted on massive changes to the federal workforce.
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.
This morning, on the Fourth of July, I watched an hourlong seminar on constitutional law. The host was Preet Bharara, fellow graduate of Columbia Law School, widely admired for his work as the U.S. Attorney for Manhattan, fired by Trump for doing his job with competence and integrity, and current partner of WilmerHale (one of the Big Law firms resisting Trump’s illegal targeting).
Guest commentators were
Melissa Murray, the Stokes Professor at New York University School of Law, and the daughter of Jamaican immigrants,
Jack Goldsmith, the Learned Hand[1] Professor of Law at Harvard, and
Trevor Morrison, professor and dean emeritus at New York University School of Law, and former attorney with the Office of Legal Counsel under President Obama.
Scrolling down, you will find several of my recent posts on Trump v. CASA, birthright citizenship, and “nationwide”/universal injunctions. Unlike me, the four people in the video have spent their lives studying constitutional law and federal civil procedure. That is one reason why they bring many valuable insights to the “nationwide” injunctions kerfuffle—and why, if the subject interests you, watching the video will richly repay your time.
And also why watching the video will provide valuable insights into how good constitutional law is done.
And why, moreover, good constitutional law reasoning is hard—an activity not best left to people whose thinking consists of bumper sticker slogans.
All that said, I am gratified that these people mostly agreed with my amateur understanding of the big legal issues—though they made their points will more precision and detail than I brought to bear.
With one exception. I think I missed the boat on a subtle but important point.
Did the Supreme Court Reserve to Itself the Power to Issue “Nationwide” Injunctions—All the While Denying that Power to the Lower Courts?
Justice Barrett’s majority opinion makes a big bloody deal of the claim that, in the Judiciary Act of 1789, Congress did not grant the courts any general power to issue “nationwide” injunctions. (If I were writing for fellow shysters, I would say that the justice’s interpretation of the Judiciary Act was the ratio decidendi—the rationale for her decision. But since I’m not writing for other shysters, I’ll just say “big bloody deal.”)
Now, if Congress gave no such power to the district courts or to the courts of appeal, then it must follow, as the night the day, that Congress did not give any such power to the Supreme Court, either. For that reason, I was puzzled by certain commentators’ claim that the Supreme Court reserved for itself the power to issue universal injunctions in cases where there had been no class certification.
My mistake.
As one of the speakers in the video—Prof. Goldsmith, I think—pointed out, the very last sentence of the majority opinion is in fact a “nationwide”/universal injunction! That sentence reads, “Consistent with the Solicitor General’s representation [that Team Trump won’t play games with the Supreme Court], §2 of the Executive Order shall not take effect until 30 days after the date of this opinion.”
For context, note that Section 2 is the operative language of the executive order—the part that claims to declare the policy of the United States government about who is, and who isn’t, a birthright citizen.
The Learned Hand Professor of Law at Harvard did not know what authority the Court might claim to justify writing that sentence and issuing that order.
And if he doesn’t know, then neither do I.
[1] For anyone who might wonder, “Learned Hand” does not refer to Prof. Goldsmith’s penmanship, but rather to Judge Learned Hand, a distinguished jurisprude and federal appellate judge who died in 1961.
Justice Barrett wrote a 26-page opinion, speaking for herself and five other justices. In footnote 2 she wrote, “The Government does not dispute—nor could it—that the individual plaintiffs have standing to sue.” The individual plaintiffs are, of course, Liza and her newborn baby, the three other undocumented new mothers and babies, along with Maribel and the baby she is expecting, plus Juana and the two other undocumented women who might become pregnant.
All of these plaintiffs have already received preliminary injunctions blocking Team Trump from enforcing its executive order as to them. Justice Barrett stays these preliminary injunctions “but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”
As to “each plaintiff with standing to sue,” the justice has already said that the four new mothers, their four little babies, the pregnant mother, her unborn child, and the three women who might get pregnant all have standing to sue.
As to “complete relief,” Justice Barrett says she means a prohibition on Team Trump’s enforcement of its executive order against those specific 13 people.
Footnote 18 of the majority opinion anticipates that Team Trump will not play cute by declining to appeal adverse rulings on specific plaintiffs while attempting to enforce the executive order against others. Instead, the justice says that she has extracted a promise, in open court, that yes, the government will appeal if it loses, and, yes, if the Supreme Court rules on the merits against Trump, then the government will abide by the Court’s ruling.
So that’s what Justice Barrett thinks is going to happen.
The problem, of course, is that Team Trump is comprised of liars, and the truth is not in them. On birthright citizenship, Team Trump has promised to stop playing legal games. If Justice Barrett places full faith and credit on that promise, then I have a nice bridge in Brooklyn that I’m willing to sell at a reasonable price.
Would Class Certification Under FRCP Rule 23 Fix the Lying Liar Pants on Fire Problem?
Yes, it would. Because, where a class is certified, a court can grant injunctive relief to the whole class, not just the specific named plaintiffs.
Plus, of course, if there is class certification, then there is no longer any need to perseverate over whether, absent class certification, the Judiciary Act of 1789 does or does not forbid “nationwide injunctions.”
And take note that, while Justice Barrett’s majority opinion said nothing about class certification, the class action option was raised in concurring opinions by Justice Alito and by Justice Kavanaugh.
What Issues Will be Raised by a Motion to Certify a Class?
Rule 23 is complex and verbose. A party opposing certification usually has lots of issues to raise and lots of language to work with—and a whole lot of hoops to make the other side jump through. I’m going to give you a quick and dirty version of how I see it playing out here.[2]
Class Definition and Related Issues. A class action decision is binding on the whole class—if the class loses the case, then individual members of the class are bound by the loss, and cannot relitigate the question. For that reason and others, a class definition must be clear, and it must be relatively easy to know who’s in the class and who’s out of it. And, on a related note, there must be some feasible means to give all class members notice of the pending litigation.
For example, if your proposed class is “all female employees of Walmart who have suffered discriminatory treatment on account of their gender,” the definition is arguably too loose to justify class certification.
Here, however, in the executive order, Trump himself has explicitly defined the class of people he seeks to mistreat.
Uniform Treatment of All Class Members. Rule 23 recognizes that class action treatment may be appropriate when “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.”
If you try to define a class of “all female employees of Walmart who have suffered discriminatory treatment on account of their gender,” the Walmart is going to argue that there are eight million stories in the naked city, and there’s no way to lump all these stories into one big lawsuit. Pretty good argument. But suppose that Walmart had issued a formal written policy providing that all female employees were to be paid at 80 percent of the salaries of male workers with corresponding jobs. Class action litigation to challenge that uniform policy would be entirely appropriate.
Conflicts of Interests and Objectives Within the Defined Class. Sometimes this is a big issue, but not, I think, here. I don’t think there a whole lot of fertile undocumented women who hope their babies will be deprived of U.S. citizenship—and thus risk statelessness.
Calculation of Damages. If the proposed class is seeking damages for past misconduct, the defendant will often argue that it’s difficult or impossible to use a single formula to calculate the damages accruing to each member of the plaintiff class—and that, accordingly, individual legal questions predominate over common legal questions. But that’s a moot point here, because the object of the lawsuit would be injunctive relief to prevent future harm, not damages.
To me, all the relevant factors point toward the use of class action litigation to challenge the executive order.
So, What Class Action Action Have We Seen Since the Supreme Court’s Decision Last Week?
We have seen that
The CASA v. Trump lawsuit has been recast as a putative class action
The American Civil Liberties Union, joining with a number of other partners, has brought a putative nationwide class action on birthright citizenship, and
Other class action litigation may be in the works.
[1] And specifically, what comes next for the legal claims of the plaintiff undocumented immigrant mothers, as distinguished from the claims of the states and of the organizations suing to protect birthright citizenship?
[2] I dealt with class certification issues throughout my 35 years of antitrust legal practice.
I discussed the executive order on birthright citizenship in the preceding post.
What is a “Nationwide Injunction”?
The term “nationwide injunction” is inapt and misleading, but lots of people want to use it anyway. So let’s define it for present purposes. For present purposes, a “nationwide injunction” is an injunction issued in a case brought by one or more persons (either two-legged persons or juridical persons such as corporations) that protects not only the individual plaintiff(s) but also everyone else in a similar legal position, even though there is no certified “class action” in accordance with Rule 23 of the Federal Rules of Civil Procedure.
As so defined, a nationwide injunction is an end run around the normal requirements for class certification under Rule 23.[1]
To illustrate and explain the point: Plaintiffs in the CASA case include four new mothers and their babies, one pregnant woman and her unborn child, and three undocumented immigrant women who might become pregnant. If the plaintiffs wanted to secure a ruling protecting not only their children but also all children whom Trump threatened to deprive of citizenship, then the normal/traditional route would be to ask the district court to “certify” such a “class” of similarly situated mothers. That class certification process involves a number of inquiries about whether it would be advisable for the litigation to go forward on a class basis, not an individual basis. But Liza, Andrea, and the other expectant mothers asked for nationwide/universal relief, without going through the certification exercise.
Before Trump v. CASA, Was There a Legitimate Legal Controversy about Whether Courts Could Issue “Nationwide Injunctions”?
Yes. Long story. But yes.
In fact, the Biden administration asked the Supreme Court to impose severe limitations on “nationwide injunctions.”
Some Say it was Odd—and Inadvisable—for the Court to Rule on the “Nationwide Injunction” Question but Kick the Can Down the Road on the Substantive Issue of Birthright Citizenship. Do You Agree?
Yes, I do agree. And if anyone reading this post wants to delve deeper, many of the sources cited above will be useful.
But I think the much more interesting question is whether plaintiff can represent a class of similarly situated mothers, babies, and unborn children.
And whether, by so complying with Rule 23, they can find effective legal relief against Trump’s illegal position on birthright citizenship.
What’s Going to Happen Next in the Birthright Citizenship Cases?
I’ll write about that in my next post, which will appear immediately above this one, because the posts on my blog appear in reverse chronological order.
[1] Related, but distinct, issues are raised by lawsuits with plaintiffs claiming to represent a category of other people—for example, a suit brought by a state government on behalf of all its citizen or a suit brought by a trade association on behalf of all its members. Team Trump challenged the “standing” of states and associations to bring such cases, but the Court decided to kick this can down the road.
What Does the Executive Order Claim to Accomplish?
The executive order is prospective. It purports to deny citizenship to future babies born in the United States if (1) the baby’s mother is unlawfully present in the United States and (2) the baby’s father is not a U.S. citizen or lawful permanent resident.[1]
What is the Legal Basis for the Executive Order?
The 14th Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …”
Thus, if you want to argue that babies born in the United States to undocumented parents are not citizens, then you have to hang your hat on the words “and subject to the jurisdiction thereof.” And you have to make a very strained and slanty-eyed interpretation of that phrase.
That strained interpretation is the position Trump takes in the executive order.
A Frontal Challenge to an 1898 Supreme Court Case
Back in 1898, the Supreme Court considered—and rejected—the legal position that Team Trump now espouses. So Trump has to argue (among other things) that the Supreme Court got it wrong in 1898, and that the law has stayed wrong for the past 127 years.
Four Ways to Read the Executive Order
(1) A Test Case before the Supreme Court. A charitable reading is that the executive order is intended as the predicate to a test case, in which the Supreme Court would revisit the issue it decided back in 1898.
Trump may argue that it’s OK to set up a test case. After all, we all have a constitutional right to be wrong, and we all, including His Most High Excellency, have a right to ask the Supreme Court to embrace our erroneous legal claims.[2]
(2) Defiance of the Supreme Court. An uncharitable reading of the executive order is that Mango Mussolini claims that HE ALONE, not the Supreme Court, may divine the definitive definition of the words in the Constitution.
(3) Evasion of Supreme Court Review, or, the Cuter Than Bambi Reading. A third interpretation—perhaps even more uncharitable, though very possibly accurate—is Team Trump is attempting to evade Supreme Court review of his novel constitutional argument by
losing all the cases brought by people aggrieved by the order,
avoiding all appeals of such losses, and
enforcing their erroneous legal interpretation against everybody else.
Some lawyers—not that many, but some—are under the impression that they are cuter than Bambi. This is the sort of horseshit that they come up with.
(4) The FAFO Reading. Lastly, one may read the executive order as implying that Team Trump hasn’t thought through how to get their novel legal theory accepted. Under this interpretation, they just plan to Fuck Around and Find Out.
What about Retrospective Application of Trump’s Position against Birthright Citizenship?
Someone other than me must surely have spotted this issue—but, if so, I haven’t seen any evidence of it. Here’s the issue.
Suppose that—some way, somehow—Team Trump gets the courts to all enforcement of the executive order in respect of future babies born to undocumented immigrants. Bear with me on that. Just entertain the supposition.
Logically, that would imply everybody already born in the United States to undocumented parents also lacks U.S. citizenship.
Would Team Trump be prepared to take that position?
That’s at least five million people, and probably more.
[1] The order also addresses another distinct issue/problem, that of “birth tourism.” That’s an interesting issue, but pales in importance compared to the issue of babies born to undocumented immigrants.
[2] That right flows from the First Amendment right to petition for redress of grievance. And, BTW, Trump also has a constitutional right to ask Congress to pass a law endorsing his view of citizenship. But that wouldn’t work, because any such law would be unconstitutional unless and until the Supreme Court changes its mind about its 1898 interpretation of the Fourteenth Amendment.
Facing MAGA 