Tag: Birthright Citizenship

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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. 

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Birthright Citizenship: After Trump v. CASA, What Comes Next?

This follows up on my prior posts on Trump’s Executive Order on Birthright Citizenship and “Nationwide” Injunctions, Birthright Citizenship, and the Supreme Court Decision in Trump v. CASA.

So, what comes next?[1]

Justice Barrett on What Comes Next

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.

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“Nationwide” Injunctions, Birthright Citizenship, and the Supreme Court Decision in Trump v. CASA

The case is here. For a variety of takes from the commentators, see, e.g.,

Amy Howe (SCOTUSblog), Supreme Court sides with Trump administration on nationwide injunctions in birthright citizenship case

Washington Post Editorial Board, Justices need to own the consequences of their injunction ruling: the court has significantly weakened district courts’ ability to halt illegal presidential actions.

Jason Willick (Washington Post), Justice Kavanaugh explains what the injunctions ruling won’t change

Philip Rotner (The Bulwark), Ignoring Substance, SCOTUS Permits Lawlessness

Nicholas Bagley (The Atlantic), The Supreme Court put Nationwide Injunctions to the Torch: That isn’t the disaster for birthright citizenship that some fear. 

N.Y. Times, Guest Essay, ‘There’s Just Too Much Lawlessness’: Three Legal Experts on an Embattled Supreme Court

See also yesterday’s update from the ACLU. 

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. 

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Trump’s Executive Order on Birthright Citizenship

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. 

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The Ninth Circuit Panel’s Decision in State of Washington v. Trump, One of the Birthright Citizenship Cases—Shock and Awe or Shock and Awful?

The opinion, issued on February 19, denied the Justice Department’s “emergency” request for the appeals court to overrule a district judge’s injunction against Trump’s executive order purporting to end birthright citizenship, despite the language of the Fourteenth Amendment and despite consistent judicial interpretations of the Fourteenth Amendment, going back to 1898. (If anyone cares, that district judge, who reamed out Trump and his Justice Department, was appointed by President Reagan.)

To be clear, the district court’s ruling in question was not the judge’s definitive answer to the question whether Trump was right or wrong on birthright citizenship. It was, instead, a decision ordering a “preliminary injunction” pending full briefing, trial, and argument of the case. 

Brushing away lots of legalese, the central issues at play when a judge rules on a request for a preliminary injunction are three:

  • the “likelihood of success on the merits,” in other words, what does the judge think will probably happen when all the dust settles: Is the plaintiff more likely to win, or is it the defendant who will probably prevail? and, second,
  • the harm issue—will the plaintiff be harmed if a preliminary injunction is not issued to preserve the state of play, while the issue is litigated? Or is it the defendant who will suffer harm if it is enjoined from doing what it wants to do?
  • the public interest issue—apart from the parties to the case, what about the broader public? 

In my experience, the first of these factors—“likelihood of success on the merits”—tends to be dispositive. And so it was here. Two of the three panel members of the appellate panel, Judge William Canby (appointed by Carter) and Milan Smith (appointed by Bush the Elder), joined in a terse, one page decision, declining to overrule the district court, because Team Trump did not make a “strong showing that [they are] likely to succeed on the merits.” 

The third judge, Danielle J. Forrest, wrote a much more expansive piece of prose, concurring in the majority’s bottom line result, but “for reasons different than relied on” by the other two members of the panel. 

Many are wondering how the Federalist Society judges, who now bestride the third branch of our federal government, will deal with Team Trump. What the Supreme Court does with birthright citizenship remains to be seen. But Judge Forrest’s treatment of the case is not without interest.

A bit of background: Judge Danielle Forrest was appointed to the bench in 2019, during Trump 1.0. Reading between the lines of her Wikipedia biography, I glean that Democratic opposition to her appointment was weak, probably on the ground that, “Well, this is about the best we can expect from a Trump appointment.”

Interestingly, her Wikipedia entry says, in black and white, that “She was a member of the Federalist Society from 2002 to 2006 and again from 2017 to present.” One might wonder whether her renewed commitment to the Federalist Society in 2017 might have had something to do with a desire for higher office—given that Trump 1.0 farmed out the judicial selection function to the esteemed Society. That said, in any event …

In her six pages of prose, Judge Forrest manfully eschewed any views on the “likelihood of success on the merits”—in other words, whether birthright citizenship is found in the Constitution, or whether it isn’t.

Instead, the very large burr in her saddle was the purported “emergency” referenced by Team Trump. The implication is that birthright citizenship has been the law of the land ever since 1866 or 1898, depending on how you count. Letting it be the law of the land for a few more weeks, or a few more months, is in no way an emergency. 

And just because Team Trump SAYS there’s an emergency does not mean there REALLY IS an emergency. 

In short, for this one Federalist Society jurisprude, Team Trump’s legal Shock and Awe is really Shock and Awful.