A single federal district court judge did exactly what the US Supreme Court dreaded: stopped the administration’s birthright citizenship executive order from going into effect nationwide.
In Barbara v. Trump, a New Hampshire judge granted a preliminary injunction in a provisional class action—covering not only the named plaintiffs, but a class of thousands of babies coast-to-coast who will lose their citizenship under the administration’s dangerous and constitutionally dubious executive order.
This lower court ruling, while groundbreaking, isn’t surprising. It was only a matter of time. Just a few weeks to be exact.
Last month, the Supreme Court ruled in Trump v. CASA that a federal district court judge may not issue injunctive relief beyond the parties to a lawsuit, even when a government policy threatens to irreparably harm thousands of others in the same way. The court effectively eliminated one of the most important remedies available to everyday Americans challenging blatant violations of their constitutional rights—the universal injunction.
At the center of Trump v. CASA is the Trump administration’s executive order denying birthright citizenship to thousands of children born in the US whose parents are undocumented immigrants. It is widely accepted by courts and legal scholars alike that the executive order violates the Fourteenth Amendment of the Constitution and over a century of precedent.
Not surprisingly, individual pregnant women, immigrant rights organization CASA, and almost half the states sued the administration and successfully received emergency relief—temporarily stopping the government in its tracks from wreaking havoc on Americans nationwide. The Supreme Court’s decision largely reversed that.
The saving grace to this draconian ruling was the possibility of individuals bringing a class action. Rather than plaintiffs seeking relief solely for themselves, they may represent a larger group of people who have been similarly harmed.
A class action is a powerful and important tool. It provides the strength in numbers to challenge widespread wrongdoing by the government and big corporations—from wage theft, to denial of veterans’ benefits, to mass pollution. A class action allows workers, consumers, and small businesses to pool their resources, attract a lawyer, get systemic relief in one stroke, and protect themselves from retaliation.
Indeed, the solicitor general at oral argument in Trump v. CASA touted the class action as a potential alternative to universal injunctions. He isn’t alone. Many others have argued that aggrieved individuals should simply pursue a class action.
But this is a set up.
On the one hand, restrictive precedents prevent relief as a member of a class action. As I’ve written elsewhere, Congress, the Supreme Court, and lower courts have slowly and effectively chipped away at plaintiffs’ capacity to act collectively under the modern class action rule, Rule 23.
On the other hand, under Trump v. CASA, significant relief beyond the parties has been essentially eliminated. For decades, the Supreme Court allowed courts to broadly check presidential overreach. But now, when the Trump administration has issued an unprecedented number of policies that have set off alarm bells for the rule of law, the Supreme Court has said, “Enough!”
We are on the Titanic in treacherous and uncharted waters. And as the US sinks, the Supreme Court has decided we must bail ourselves out one bucket, if not one drop, at a time.
This is a boon for executive power to the detriment of the American people. Citing my scholarship in opposition, in Trump v. CASA the court’s majority ironically concluded it was the lower courts who were out of line:
“Some say that the universal injunction ‘give[s] the Judiciary a powerful tool to check the Executive Branch,’” Justice Amy Coney Barrett wrote for the majority. “But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
The court skirted the issue of whether universal injunctions are constitutional, and concluded instead that, based on the Judiciary Act of 1789, the universal injunction lacked a sufficient “historical pedigree” to survive. Legal historians, scholars, and advocates disagree about how to interpret the history of federal courts’ equitable authority to issue universal injunctions, with the court ultimately picking one side. The result of the court’s cramped interpretation is devastating.
As I warned in 2017, while universal injunctions are imperfect, they are “better than no justice at all.” This isn’t hyperbole. It’s what happens when people face widespread constitutional harm, but the legal system offers them no realistic remedy. Most Americans can’t afford to hire a lawyer, bring a lawsuit, or even know where to begin. Those once protected by universal injunctions, are now on their own.
In response to this historic loss, class actions have been put forward as a ready alternative.
However, such aggregate litigation isn’t a panacea. It’s naïve to think class actions are easy to bring. As a civil rights class action attorney, civil procedure scholar, and law professor over the course of 30 years, I can assure you they aren’t. For starters, class actions can be expensive, time consuming, highly complex cases, which (like universal injunctions) encourage forum shopping.
Moreover, the court has helped ensure their demise. Justice Samuel Alito’s messaging in the birthright citizenship decision is a case in point. In his concurring opinion, he warns that class actions threaten the court’s ruling as a “potential significant loophole” that courts should guard against. He reminds courts to be “rigorous” and practice “scrupulous adherence” to the class action rule, and to be “vigilant” about “potential abuses.”
He signals the scarcity of aggregation, limiting it to “discrete scenarios.”The concurrence cautions litigants to be wary of unfairness and to seek an immediate appeal of any class certification decision they don’t like under Rule 23(f).
Rather than a full-throated welcome of aggregate litigation to provide nationwide relief to those suffering under unconstitutional policies, the court has once again teed up class actions as the bogey man. Having essentially killed the universal injunction, the court now aims to put the class action on life support.
At oral argument, the handwriting was on the wall. While the solicitor general showcased the class action as the obvious alternative to a universal injunction, that praise was self-serving and fleeting.
Predictably, in Barbara v. Trump, the administration has followed the court’s lead. The government has raised a familiar litany of concerns about why the birthright citizenship case shouldn’t be a class action under Rule 23: the named plaintiffs’ claims don’t have enough in common with those of the class and are atypical; the class representatives aren’t up for the job; aggregation is premature and requires discovery into the facts.
Tracking the warnings of Trump v. CASA, the administration follows the decision’s playbook, characterizing the class action as an “‘end-run around’ universal injunctions.”
In the end, the court has left us with a paradox. It recognizes the tsunami of government harm, yet insists courts offer relief one drop at a time, or worse “no justice at all.”
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Suzette Malveaux is a professor of law at Washington & Lee University Law School and former chair of the American Association of Law School’s civil procedure section.
Write for Us: Author Guidelines
To contact the editors responsible for this story: