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.
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.
Facing MAGA 