Federal Court Issues Class Action Injunction Against Trump's Birthright Citizenship Executive Order [Updated]

This ruling was widely expected in the wake of the Supreme Court's decison barring nationwide injunctions.

Photo by saiid bel on Unsplash; Reamolko

In the aftermath of the Supreme Court's ruling in Trump v. CASA, barring nationwide injunctions, most informed observers expected courts to instead certify broad class actions against Donald Trump's birthright citizenship executive order (which denies birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas). That's precisely what happened today.

Federal District Judge Joseph Laplante has certified a class consisting of all current and future children who stand to lose citizenship rights because of Trump's order, and issued a preliminary injunction barring enforcement of the order against all members of that class.

Obviously, the administration will appeal the class certification and injunction, and the issue could well get back to the Supreme Court. Perhaps sooner rather than latter.

I am no class action expert. But, for what little it's worth, I think this class does meet the Rule 23 requirements of numerosity (the class has hundreds of thousands of members), commonality (the class members all have an obvious common interest in getting citizenship, thereby avoiding potential deportation), typicality (the class representatives litigating the case seem to be typical of the class as a whole), and adequacy of representation (the ACLU lawyers litigating the case seem more than adequate, as far as I can tell). But, again, I am no class action expert, so this opinion may not be worth much more than the money you're (not) paying to read it!

Even if this class action succeeds, I remain convinced that Trump v. CASA was a bad decision. The class action certification remedy may not be so readily available in some other important cases involving large-scale illegality by federal, state, or local governments.

But assume I am wrong about that. Assume that class actions or some other comparably broad remedy will be feasible in every situation where a nationwide injunction might have been available before. In that event, I would wonder what the point of getting rid of nationwide injunctions was in the first place, as litigants would still be able to get essentially the same remedy by another name. If basically the same remedy is in fact available to same degree as before, I say it's better to just call a spade a spade, than to pretend your spade is actually a shovel.

Today's ruling, like the Supreme Court decision, does not address the substantive legality of Trump's order. This same district court had already ruled that the order is unconstitutional, and the Supreme Court's decision did not overturn that, but only addressed the issue of the scope of the available remedy.

For my explanations of why children of undocumented immigrants are constitutionally entitled to birthright citizenship and criticisms of some standard contrary arguments, see here and here.

UPDATE: Judge Laplante's opinion justifying the class action certification is available here. His analysis of the various class action factors strikes me as compelling. But, again, this is not my area of expertise.

Comments

[TwelveInchPianist]

That can't be right. I was assured that the Supreme Court's ruling would result in chaos, a patchwork of laws throughout the US, etc.

[Area Man]

I was also told that democracy would end by people who want unelected federal judges dictating all areas of policy.

[wvattorney13]

Is this really all it takes? Just rapid certify a class under Rule 23 and issue a nationwide injunction? What was all the fuss about?

[David Nieporent]

The fuss is about the fact that in some cases it won't be so easy to certify a class. This particular one is really easy because it presents solely a common legal question, with no factual development required. Indeed, 23(b)(2) was expressly designed for civil rights cases like this. But some of the other suits against Trump's illegal acts will either take much much longer or not be certifiable at all, which would require that each putative class member sue individually.

[santamonica811]

I think David hits the nail on the head. It's hard to imagine a case where it's easier to argue for class action commonality. Maybe something like gay marriages. But typically you start getting pretty different fact patterns that can muddy the waters. Here, the underlying facts seem quite similar. And, thanks to Trump, the potential harms are both [a] very real, and [b] very similar.

I suspect that very very few types of cases will line up as well for class action status as do birthright citizenship ones.

[minus the clever name]

This is called reification in logic, assuming that a name must tie to an actual thing.
Birthright citizenship was rejected at the time of the Founding alone with primogeniture and entail. Jus Soli meant our First President was an English citizen by birth until death.
I might be back to crow...and don't bring up Indians again okay

From founding-era descriptions of Indian tribes
as “nations,” some scholars have concluded that European-Americans
recognized tribes as sovereigns, and therefore did not apply state law
to them. In fact, this particular use of “nation” was a Latinate usage
deriving from natio—meaning an ethnic group. Robert G. Natelson,
The Original Understanding of the Indian Commerce Clause, 85 Denv.
L. Rev. 201, 259 (2007).

[thesafesurfer]

Justice Alito certainly anticipated the judicial tyrants would not end their assault on democratically elected government.

[Krayt]

I would pick any of a hundred other issues to complain about before wistfully glowing on the president unilaterally overturning a century of Constitutional interpretation.

I mean, if you're concerned about tyrants 'n stuff.

[minus the clever name]

still mad about Dred Scott, huh

[M L]

"overturning a century of Constitutional interpretation."

Uh, no. The EO does not overturn any precedent at all, much less a century of it. Even administratively, the government did not start routinely awarding the violation of immigration law with citizenship until the 60s-70s.

[F.D. Wolf]

LOL. Yes, it certainly was "widely expected" by those that knew lawless activist, leftist judges would seek to sidestep rather than obey a clear mandate from the Supreme Court. Justice Alito, in his concurrence, explicitly warned lawless district judges not to try this.

If those consumed with anti-Trump hatred were able to think clearly, then they would realize they will not be pleased by the inevitable consequences. The decision, which will not withstand appeal, will only serve to anger the Supreme Court, which will not be too pleased with such open defiance, especially while they are on vacation. They will be forced to rein in rogue district judges even more now, creating precedent that restricts future efforts to thwart the Trump administration, some of which may have actually been legitimate.

[Social Justice is neither]

Once this "class" has a right to citizenship how can the same legal system deny the prerequisite right to life in the follow-on wrongful death class action lawsuits against any providers?

[not guilty]

"Once this 'class' has a right to citizenship how can the same legal system deny the prerequisite right to life in the follow-on wrongful death class action lawsuits against any providers?"

I enjoy a good non sequitur as much as the next fellow, but this is ridiculous.

What class of decedents do you posit will be represented by the putative class representatives? Who will be the class representatives? What is the common question of law or fact? Who would be sued? How would the class members be notified?

Please show your work.

[David Nieporent]

They did in fact obey a clear mandate from the Supreme Court. I'm sorry that the courts are getting in the way of your desire to lynch American citizens because they're brown, but this was not sidestepping anything, and did not violate anything Alito suggested. A chimpanzee on quaaludes could have gotten this class certified; it checks all the Rule 23 boxes with ease.

Which is probably why you don't even pretend to try to make any sort of actual argument why class certification was inappropriate here.

[wemekay841]

they're not american citizens. children of illegals were never intended to be covered by the 14th amendment and you know it. the only way to support birthright citizenship for these people is to think that americans have no right to decide who joins them as fellow citizens.

of course you're a dirty disloyal kike who wants these stupid browns here to dilute the power of whites that you so hate.

[David Nieporent]

I encourage you to keep helping make Trump's arguments on this issue.

[not guilty]

"of course you're a dirty disloyal kike who wants these stupid browns here to dilute the power of whites that you so hate."

wemekay841, how do you think that this kind of name calling is persuasive?

[Vryedni]

You're really asking this guy that question?

[Gasman]

"... and you know it."

A failing argument. It is clear that a good many, probably a majority, , do not 'know it'.
Birthright citizenship is widely accepted, and the split in opinion in most polls shows that this topic as a popular discussion is alive and active. The real question is whether the long held position by the preceding 30 presidents since ratification of the 14th amendment, and consistent ruling of the courts needs to be change.
So it seems as if there is interest in doing something different, then perhaps have the congress propose a 28th amendment to that effect.

Curiously, in the case of children born to parents who themselves were also born in the US, 4% of respondents feel that citizenship is not granted. Some odd application of a one-drop exception? no explanation as to what was on their minds.

[minus the clever name]

That an American citizen is 'brown' or not is of course controlled by that same government. All reports say that Plessy (of Plessy v Ferguson) was whiter than Lady Di.

[MaddogEngineer]

Was Justice Alito specifically warning about a class being abused subsequently in this case? Because both the class and an injunction seem justifiable. Maybe that will happen in other cases, but I don't see it here.

All I want is for judges to follow the existing rules. It looks like that is happening here. The injunction is justified on the merits. Even if the administration legal theory is correct (I don't think it is), what it purports to do via executive order could only at minimum be attempted by an act of Congress, clarifying "subject to the jurisdiction therefore" in law. No president has the authority to redefine such jurisdiction.

[David Nieporent]

Was Justice Alito specifically warning about a class being abused subsequently in this case?

No. He was just cautioning judges not to reflexively certify classes in every situation in which they formally entered universal injunctions. He didn't link it to this particular case.

[Malika the Maiz]

George W Bush appointed the “leftist” judge here.

[F.D. Wolf]

George H.W. Bush appointed Sonia Sotomayor to the district court. Republican presidents have a pretty good history of appointing leftist judges to the bench. But, regardless, it's not so much the leftism as the lawlessness that is offensive. Plenty of leftist judges still obey precedent.

[Malika the Maiz]

That appointment was made under circumstances that I do not think applied to Laplante:

“Sotomayor had wanted to become a judge since she was in elementary school, and in 1991 she was recommended for a spot by Democratic New York senator Daniel Patrick Moynihan.[8] Moynihan had an unusual bipartisan arrangement with his fellow New York senator, Republican Al D'Amato, whereby he would get to choose roughly one out of every four New York district court seats even though a Republican was in the White House.[34][86][87][88] ”

[thesafesurfer]

Judicial tyrants are judicial tyrants.

[F.D. Wolf]

Here's the discrete "class" the judge purported to certify:

All current and future persons who are born on or after February 20, 2025, where (1) that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, as well as the parents (including expectant parents) of those persons.”

"Future person"? What's that? I was under the impression that unborn children have no standing to vindicate their rights in court. Is this the first judge to say they do?

[Roger S]

It is bogus. They do not even have any class representatives, except for a couple of illegal alien anchor babies living on welfare who are identified by first name only. The court would somehow have to get the specifics on the class members, and have reason to believe that the identified members are representative. But no one is fully identified, and there is no likelihood of getting facts on the rest of the class.

[David Nieporent]

"They do not have any class representatives, other than the class representatives."

[Malika the Maiz]

The judge cited precedent for including future persons in the first paragraph on page 12.

[F.D. Wolf]

I just scanned through all the cited precedents, and not one explicitly included unborn children. They all refer to future class members like "future students". This judge has wildly extrapolated to say permitting "future members" of a class necessarily includes unborn members. Granted, I was scanning quickly, but, I suspect, if some court had EXPLICITLY said such a thing, this judge would have noted that case right up front and quoted it.

[David Nieporent]

I think the class definition could've been phrased a bit more artfully, but I don't think anyone actually misunderstands it, though some may pretend to so they can pretend that they have legit arguments rather than just "I hate immigrants." The unborn people — the "future persons" — do not become class members until they are actually born here, just as the "future students" do not become class members until they become students.

[F.D. Wolf]

The unborn people — the "future persons" — do not become class members until they are actually born here

What's to misunderstand? That is precisely my understanding; yet, the fact remains, no court has ever said that unborn persons can become future members of a class. Until this trailblazing judge, that is. Too bad this purported certification has zero chance of surviving appellate review; otherwise, someone might have thought of another legal application for this novel ruling.

[David Nieporent]

Then I don't understand what your point is. If your position were, "Nobody who isn't a class member at the time a class is certified can be a part of that class," that would be one thing. But if you accept that a class can be defined in such a way as to include future members, then why would this class be treated any differently? It's the same principle. And if so, some judge has to be the first one, so what's with the sneering about "trailblazing"?

It's not going to come up too often, because there are few situations where someone would become a class member solely by dint of being born, but this is one of them.

[F.D. Wolf]

Every plaintiff, named and unnamed, must have Article III standing, and, while it may be uncertain in particular cases, I think everyone should be able to agree that the absolute minimum requirement for standing is actually being presently alive or in existence.

This seems obvious to me; however, if this holds up on appeal, which I am virtually certain it will not, then I promise I will find one of your posts, and say, "David, you were right, unborn people can become members of a class certification."

[David Nieporent]

I think everyone should be able to agree that the absolute minimum requirement for standing is actually being presently alive or in existence.

You just said a moment ago that you understood — that it was "precisely [your] understanding" — that "the unborn people — the 'future persons' — do not become class members until they are actually born here." So why would it matter whether they have standing before they're born and aren't in the class, as opposed to after they're born and are in the class?

[Michael P]

One cannot file a lawsuit on behalf of hypothetical people who might sometime, but don't yet exist. There's no actual case or controversy over them before they are born. Or so we are told, extremely strenuously, in the context of abortion.

[David Nieporent]

Thanks for repeating the mistaken premise and throwing in a random non sequitur to boot.

[minus the clever name]

Again BOTH WRONG, very wrong.
Fetal homicide rules punish what David seems confused about and what you call hypothetical Though MIchael P certainly won the chimp prize by saying "NO case...before they are born' Michael has never been related to a fetal death so he assumes it never happens WOW

Hello, MICHAEL!!!!!!!!!!!!!!!!!!!!
"Thirty-eight states in the U.S. have fetal homicide laws, meaning they treat the unlawful killing of a fetus as a form of homicide. "
anybody home ?

[wemekay841]

and you hate whites, which is why you want these people here, to give permanent democrat control.

you little hatters in the diaspora are the most disloyal people around.

[minus the clever name]

Like they say "You fish where the fish are or you hope"

By the time of the Fourteenth Amendment’s adoption, “nearly
every state had criminal legislation proscribing abortion,”65 and
most of these statutes were classified among “offenses against the
person.”66 The original public meaning of the term “person” thus
incontestably included prenatal life. Indeed, “there can be no
doubt whatsoever that the word ‘person’ referred to the fetus.”67
In twenty-three states and six territories, laws referred to the preborn individual as a “child.”68 Is it reasonable to presume that
these legislatures would have used this terminology if “they had
not considered the fetus to be a ‘person’”

[Riva]

The judge cited cases? Really? No shit? Well that's finished it. Government better settle. What's the damn point of going on now.

[DaveM]

If an unborn person can be a member of this class before the court, then those unborn persons are both persons AND US citizens as well.

My next suit will be to protect all such from ever being aborted, followed immediately by another class action consisting of ALL future persons as also protected against being aborted.

[not guilty]

DaveM, what part of "born or naturalized in the United States" do you fail to understand?

The unborn are not presently class members. Upon birth, they will become class members.

[minus the clever name]

Wrong on history and law

HISTORY
The American
Medical Association’s 1859 report on abortion considered the
human being in utero a person, and it called for protection of the
“independent and actual existence of the child before birth, as a
living being.”84 They decried the “unnecessary and unjustifiable
destruction of human life” both before and after quickening, and
they urged state legislatures to reform their abortion statutes.85
The Medical Society of New York in 1867 “condemned abortion at
every stage of gestation as ‘murder.’”86

LAW
When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Twenty-three states
and six territories referred to the fetus as a “child” in their statutes proscribing abortion.95 At least twenty-eight jurisdictions
labeled abortion as an “offense[] against the person” or an
equivalent criminal classification.96 Nine of the ratifying states
explicitly valued the lives of the preborn and their pregnant
mothers equally by providing the same range of punishment
for killing either during the commission of an abortion.97 The
“only plausible explanation” for this phenomenon is that “the
legislatures considered the mother and child to be equal in
their personhood.”98 Furthermore, ten states (nine of which had
ratified the Fourteenth Amendment) considered abortion to be
either manslaughter, assault with intent to murder, or murder.99 New York joined them in 1869, and the number grew to
seventeen jurisdictions in the period shortly after the adoption
of the Fourteenth Amendment. 100 A significant number of
states also considered actions that, while not intended to cause
abortion, caused the death of a child in utero to be manslaughter as well.1

[DaveM]

"Future persons" are included in this class action. You can't say they are part of a class but not part of a class.

Even if we accept your pretzel logic, since abortion specifically would DESTROY the ability for a future class member to become an "actual" (?) class member, I'd say that's just another avenue to prove this is unsupportable.

Face the facts, people are people. You can't run away from it.

[Sarcastr0]

I'm not familiar with the language of class certifications myself, but you have a good number of people telling you you're parsing it wrong, and you insist on still parsing it wrong so you can get mad.

Maybe you didn't read that far down yet?

[minus the clever name]

No, that doesn't follow at all. They get their rights THROUGH the parents as women used to through the husband under coverture. Not logical, not legal.

[DaveM]

As above, I'm not the one claiming that a person has "future" rights but not "actual" rights. That's just nonsensical on its face. The problem isn't with the mechanism through which something future somehow becomes actual, but with the logic of saying that future persons ARE in the class but AREN'T in the class.

[David Nieporent]

It is not in fact nonsensical in any way. If a contingent event occurs — in this case, birth in the U.S. — then this person will become a member of the class at that time. If it doesn't occur, then he or she won't.

Future persons — in the way you seem to mean it (i.e. fetuses) — aren't in the class; you're not even reading the class definition correctly.

[minus the clever name]

This is bad law but worse logic

Thirty-eight states in the U.S. have fetal homicide laws, meaning they treat the unlawful killing of a fetus as a form of homicide.

IT says notihng about citizenship nor is killing the baby of a non-citizen any different.

[DaveM]

This class action includes "future persons" as members in good standing before a court of law. I agree that's just poor logic, but if it is accepted as legitimate, we have to go with it.

[David Nieporent]

This class action includes "future persons" as members in good standing

It does not. Read more better.

All current and future persons who are born on or after February 20, 2025, . People who haven't been born yet are not "future persons who are born on or after" any date.

[Riva]

Well, I for one am thoroughly impressed with the careful and nuanced analysis of legal intelligentsia with respect to the rigorous requirements for class certification. Any concerns with commonality, typicality, and adequacy of representation? Meh, close enough. Any concerns that class certification in this context could raise separation of powers issues by undermining executive discretion in citizenship and immigration matters. Any problems of interference with the government's rule in making individual status determinations? The response again: meh, dunno, never thought about it, whatever.

[Malika the Maiz]

Riva bot does not seem programmed to access the judge’s opinion where he covers “concerns with commonality, typicality, and adequacy of representation” in several pages each.

[not guilty]

Whenever Riva is asked whether (s)he has actually read a judicial opinion which (s)he is commenting on, (s)he runs away like a scalded dog. Why should Judge Laplante's instant order be any different?

[Riva]

Your childish insults are not questions. I them ignore as I would any trollish clown.

[not guilty]

Riva, asking whether you have or have not read a document is a question, which can be answered with a simple yes or no, Your refusal to answer is a tacit admission that you are ignorantly commenting on something despite not having read original source material.

[David Nieporent]

There are no concerns with commonality, typicality, or adequacy of representation. Rule 23 was literally drafted for cases like this.

There is no executive discretion in birthright citizenship matters. None. Zero. The president has no authority of any sort. The entire point of the 14th amendment was to make clear that nobody gives a fuck who politicians think should be birthright citizens. The government doesn't have any role in "making individual status determinations," unless by that you simply mean determining whether any specific person was actually born in the U.S., in which case nothing in this case will affect the government's ability to do so.

[Riva]

And it's not just the legal intelligentsia posters. Even the commenters bring some worthwhile insights. "The entire point of the 14th amendment was to make clear that nobody gives a fuck who politicians think should be birthright citizens." First class legal analysis. Just because the argument assumes the amendment affords some broad unlimited concept of birthright citizenship without even bothering to define what that means in the context of the language of the 14th amendment in no way diminishes the force of the argument. Why? Because, well, nobody give a fuck. Cogent and compelling.

[David Nieporent]

Look, one can dishonestly pretend that the 14th amendment says something different than what 100% of courts and lawyers know it says. But even if the completely fabricated, ahistorical, atextual interpretation were true — which of course it is not — it still would leave nothing to "executive discretion," so your legally illiterate objection would still make no sense.

[Riva]

It is patently false that the executive has no discretion with respect to individual status determinations. And more fundamentally, the executive has a responsibility and duty to enforce the law. The president has made a determination regarding the status of the offspring of illegals and temporary visitors that is consistent with the 14th amendment and precedent. The judge here is, so to speak, full of it with respect to warping of class action standards and the constitution. And, I suspect the S.Ct. will be none too amused at his blatant attempt to undermine their proscriptions against universal injunctions.

[David Nieporent]

It is patently false that the executive has no discretion with respect to individual status determinations.

No, it is 100% true. The executive has no discretion — and indeed, no role of any sort — in birthright citizenship matters. Nobody cares what the president thinks. (Not that this president does that, of course.) That's true regardless of how this case turns out. SCOTUS could ignore centuries of common law as well as the text of the 14th amendment and overrule Wong Kim Ark, and it still wouldn't give the president any "discretion." If SCOTUS did that, then some people born here would not be birthright citizens, regardless of what the president wanted.

And more fundamentally, the executive has a responsibility and duty to enforce the law.

Only what the courts tell him the law is. It is emphatically the province and duty of the judicial department to say what the law is.

[Riva]

Your bias against the president is noted. And while you have many kindred spirits in the federal judiciary, the President is acting consistently with the narrow holding of Wong Kim Ark. You are misapplying the precedent.

[Josh R]

And even if if there was executive discretion, why would that be a barrier to class certification?

[Brett Bellmore]

"Look, one can dishonestly pretend that the 14th amendment says something different than what 100% of courts and lawyers know it says."

Why not? We do that with other parts of the Constitution all the time, why is the birthright citizenship clause exempt?

Look, I hate the fact that the courts have been playing constitutional Calvinball for close to a century now, but the demand that only one side in selected fights gets to play it is just absurd.

We're all playing Calvinball, or nobody is. I'd much prefer nobody, of course.

[Sarcastr0]

Brett doesn't like the rules, so he won't bother to understand them.

That way he can insist they don't exist.

[minus the clever name]

Huh

By the time of the Fourteenth Amendment’s adoption, “nearly
every state had criminal legislation proscribing abortion,”65 and
most of these statutes were classified among “offenses against the
person.”66 The original public meaning of the term “person” thus
incontestably included prenatal life. Indeed, “there can be no
doubt whatsoever that the word ‘person’ referred to the fetus.”67
In twenty-three states and six territories, laws referred to the preborn individual as a “child.”68 Is it reasonable to presume that
these legislatures would have used this terminology if “they had
not considered the fetus to be a ‘person’”

[minus the clever name]

sure, you say 100% so if logically I give a counterexample YOU ARE WRONG. Very simple, as usual you overstate and that is why you lose so often

https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment

[SRG2]

executive discretion in citizenship

Of which there is none, per the Constitution.

[Riva]

In one sense, true. Since the 14th amendment does not provide birthright citizenship to the offspring of illegals and temporary visitors, the president would have no authority to recognize those children as citizens.

[not guilty]

Begging the question much, Riva?

[minus the clever name]

She is right and you are wrong, though you reflexively jumped at 'in one sense true"

[Riva]

No, I’m responding to the comment. “Begging the question” does not mean responding in a way NG doesn’t like. Now crazy Dave below me, that would be begging the question, if you’re curious.

[not guilty]

"Begging the question" means framing the inquiry in a manner that presupposes the desired conclusion, doofus. In other words, it's a form of circular reasoning where the thing one is trying to prove is already assumed to be true.

Such as "Since the 14th amendment does not provide birthright citizenship to the offspring of illegals and temporary visitors".

[David Nieporent]

A light partially dawns on the bot! Yes, that's what I've been trying to explain to you. He has no discretion.

But of course the 14th amendment expressly provides birthright citizenship to the offspring of illegals and temporary visitors. Every single honest person agrees about that.

[Brett Bellmore]

"But of course the 14th amendment expressly provides birthright citizenship to the offspring of illegals and temporary visitors."

Now, that's going too far. I agree that birthright citizenship for everybody who is born on US soil regardless of the status of their parents IS the most direct reading of the 14th amendment.

But in order to expressly provide it to the offspring of illegals and temporary visitors, the 14th amendment would have to mention illegals and temporary visitors. This is definitely in implied or inferred territory, not express territory.

[minus the clever name]

Most everybody here is jumping to context insofar as it suits their particular wanted outcome.

So here I go
By the time of the Fourteenth Amendment’s adoption, “nearly
every state had criminal legislation proscribing abortion,”65 and
most of these statutes were classified among “offenses against the
person.”66 The original public meaning of the term “person” thus
incontestably included prenatal life. Indeed, “there can be no
doubt whatsoever that the word ‘person’ referred to the fetus.”67
In twenty-three states and six territories, laws referred to the preborn individual as a “child.”68 Is it reasonable to presume that
these legislatures would have used this terminology if “they had
not considered the fetus to be a ‘person’”

[David Nieporent]

Why is it that a supposed academic doesn't understand the concept of citing sources?

[David Nieporent]

If a rule expressly says that it applies to "X," then all things that fit within the category X are expressly included. If a law says that one must have a license for all household pets, does that merely imply that dogs are included?

[MaddogEngineer]

The problem with this is your "expressly" logic, and what the 14A citizenship clause was primarily intended to address: the Dred Scott decision and the citizenship of blacks (which went beyond the just freed slaves).

If the scope of the amendment grant required expressly mentioning who it targeted, then it would have needed to expressly mention the circumstances of freed slaves and free blacks to clearly overturn Dred Scott. Otherwise there is no way to distinguish between the freed slave and the child of an alien, illegal or otherwise. Recognizing in that era, there was almost no concept of an "illegal" alien, save for the citizen of a recognized hostile nation or foreigner under a deportation order. It would have been quite the wordy amendment, and forced to use words generations had avoided, to recognize the citizenship of those previously under involuntary servitude or descended from them.

The problem being the law at the time considered all of those aliens you name check as under the jurisdiction of the United States, despite efforts to retcon that now.

[Riva]

Ever wonder why the generally deranged and trolls like to label those they disagree with as “its”? Something to think about. And now that you have gone full troll again, this exchange has concluded.

[Stephen Goldstein]

". . . expressly provides . . . ." "Every single honest person agrees about that." Nope!

Too bad the 14th didn't express this more clearly.

Consider Bruen and the need to look back at "infringments" that were in place at the time of ratification (1791) of the 2nd. To what were the people, through their representatives, agreeing?

Now it's 2025 and someone asserts "Ordinary citizens don't need weapons of war." I get to say, "Hey!! That's NOT what we agreed!" Bruen . . . very helpful.

Now do the 14th. Maybe we agree that, at the minimum, it covered former slaves. But did it also cover children of "visitors," legal and otherwise? Honestly, not clear to me.

And please consider that "it's been that way for 100 years" isn't, IMO, a strong argument - remember, New York's 1911 Sullivan Law was struck down by Bruen in 2022.

Anyway, that's what I think.

[SRG2]

Since the 14th amendment does not provide birthright citizenship to the offspring of illegals and temporary visitors,

Wrong, as shown by original clear meaning and over a century of SC precedent. But you know this, you're just goebbelsing.

[minus the clever name]

It does not provide but it does not FORBID either.
I am not taking a side by saying that.

I might say "I am not committed to come to dinner tonite" but that does not forbid me from coming to dinner !!!

[minus the clever name]

The Constitution was written by men who by that citizenship clause were citizens of England until death so I doubt they accept your argument.

At the time of the Founding the nation to which you owed allegiance at birth OWNED you until death. We know the Founders rejected that.

[David Nieporent]

The Constitution was written by men who were subjects, not citizens, of England. And they believed that one could voluntarily renounce that status:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them,

[Bored Lawyer]

In that event, I would wonder what the point of getting rid of nationwide injunctions was in the first place, as litigants would still be able to get essentially the same remedy by another name.

Is Somin really this clueless? The point is, if you want to represent absent plaintiffs, you need to satisfy the requirements for class certification. The requirements of Rule 23 exist for a reason. As DN points out, sometimes they are easy to get over, sometimes not. But they are an important part of due process.

[Social Justice is neither]

They are especially easy to get over with an activist judge operating through motivated reasoning. Sorry but I have a problem with a class for a lawsuit that exists in perpetuity, that's just superpolicy masquerading as a legal case.

[SRG2]

You're arguing from consequences. What specifically about the judge's reasoning was wrong?

[MollyGodiva]

How can you have members of a class who do not exist yet?

[David Nieporent]

As I mentioned above, you can't, and they don't. They become class members once they do exist.

[MollyGodiva]

Children born before the EO goes into effect already have citizenship. Thus they are not in the class. Children not born yet can't be in the class. Thus there are no plaintiffs who have standing.

[MaddogEngineer]

Those born after the EO went into effect are part of the class. It doesn't matter that an injunction was issued, but subsequently nullified by the Supreme Court. All those affected are still having the citizenship challenged by the EO, even if the government is currently unable to act right now because of the SCOTUS 30 day stay. It will expire, absent district court action such as this.

[David Nieporent]

Thus there are no plaintiffs who have standing.

You're mistaken. Anyone born between the time the EO was set to go into effect (February 19, 2025) and the time of the suit are plaintiffs who have standing as current class members.

[minus the clever name]

Molly and David: Shock , you are both wrong .
You can be a member of a class and not yet exist. I can write a will that gives everything to my son, whether I produce a son or not. Fetal homicide bills show that rights exist prior to birth.
So 'NAY' to you both.

[David Nieporent]

You should stick to pretending you understand philosophy, because your knowledge of law is shoddy. Of course you can write such a will. You can also write a will leaving your entire estate to the Loch Ness monster. Do you think that says that the Loch Ness monster is real and has rights in your estate? You don't understand the concept of contingent future interests.

Fetal homicide laws do not show anything about rights. The government can pass a law punishing someone for causing harm without meaning that the subject of that harm has rights. It's illegal to torture your dog to death, but that doesn't mean dogs have rights. Hell, it's illegal to burn down your own house, but that doesn't mean that your house has rights.

[MaddogEngineer]

Mentioning wills was probably a bad choice to trying to object to this class certification. Since many people often write wills leaving their estate not to explicitly named/itemized children or grandchildren, but all their generational offspring per stirpes. Because they don't want to have to rewrite it every time a new descendants are born, or risk inadvertently disinheriting them if the testator should unexpectedly die the day after these newest family members are born.

So yes, the law can certainly anticipate future persons.

[MaddogEngineer]

Perhaps a civil litigator can clarify, but it doesn't sound that strange to me that future persons might qualify to become part of a class, if the requisite future circumstances happen that make them included and the legal injury ongoing. I don't think not yet being born is that big a deal. Unless such a class is locked in and unchangeable at the moment it is certified. The particular case of being born seems a distraction from that question.

[minus the clever name]

Western Philosophy is based on that membership, by reason of 'essence' . birds give rise to birds, pigs to pigs, and humans to humans, of necessity so members who do not exist yet are still with absolute certainty MEMBERS

[Armchair]

Interesting that "Future persons" are included in the class.
Do "Future persons" have rights, including the right to life? Or do they have no right to life, just the right to citizenship....

Certain pro-life lobbyists would be very interested in this class...

[minus the clever name]

Reasonable and moral people are interested.

By the time of the Fourteenth Amendment’s adoption, “nearly
every state had criminal legislation proscribing abortion,”65 and
most of these statutes were classified among “offenses against the
person.”66 The original public meaning of the term “person” thus
incontestably included prenatal life. Indeed, “there can be no
doubt whatsoever that the word ‘person’ referred to the fetus.”67
In twenty-three states and six territories, laws referred to the preborn individual as a “child.”

[pts]

What happens if the judge rules contrary to the FRCP 23(b)(1) or (2) plaintiffs? {I suppose that makes your judge selection jurisdiction very important}. I don't see any notice provision in the order as required by the rule (or perhaps the judge has determined that no notice is the appropriate notice). As a result, all the non-party participants in the class are precluded from filing their own lawsuit in their own district and circuit. Does that satisfy due process?

[Bored Lawyer]

Yes, that is a problem. You may see that on appeal.

But think about this. This is a pure issue of law. Which may well reach the Supreme Court. At which point, any ruling will be binding on all courts. So even without class certification, one or a few plaintiffs can litigate and affect everyone else. At that point, non-parties in the same position are stuck with a ruling obtained by someone else.

That's why in a case like this, the whole issue is overblown. Sooner or later SCOTUS will speak on the issue, and that will settle it for the country, absent a Constitutional amendment.

[David Nieporent]

{I suppose that makes your judge selection jurisdiction very important}.

In some cases. Not in this case, as every single judge who has considered it has come to the same conclusion, since it's required by Supreme Court precedent.

[Longtobefree]

"Does that satisfy due process?"

What's that got to do with it?
Have you been reading that constitution thing again?
Looks like another two years in the camp for you.

[ReaderY]

American law is full of situations where calling it a spade gets you tossed out of court but calling it a shovel works just fine. Possessing a gun near a school is outside the federal power. But if the gun previously traveled in interstate commerce, no problem!

Coach Kennedy can’t lead the students in school prayer. But no problem if he merely makes his own personal prayer while standing on the 50 yard line and the students just happen to join in.

Individuals can’t give more than $2500 to a candidate. But political action committees can spend an unlimited amount “educating” voters about the election, and they needn’t do so in a neutral way.

This situation is no different from these and many other examples. Injunctions are an equitable remedy limited to the case’s parties. But class-action lawsuits are a Congressionally-sanctioned way to, presto changeo, magically make everybody a party to the case. So equity’s limitations are fully satisfied.

There are numerous situations where a slightly different, slightly indirect legal strategy works where the direct one doesn’t.

It’s the sort of thing lawyers are paid to come up with.

[minus the clever name]

You avoid the legal term but it's there

EPIKEIA refers to the principle of interpreting or applying a law with fairness and equity, considering the specific circumstances and the spirit of the law rather than just its letter. It acknowledges that while laws are necessary for order, they may not always perfectly cover every unique situation

Give that person an apple

[TPKeller]

Democrats defending unborn children. What planet are we on again!?

Have we finally found something they hate (Trump) more than they love abortion!?

[Poxigah146]

Democrats only love abortion when it's middle class whites doing it.

[Michael P]

That's not true. Democrats also love abortion when it's killing (future person) Black babies, regardless of the doctor's skin color or class. Remember how far Kermit Gosnell went before the law finally woke up to what he was doing?

[minus the clever name]

you must have been sleeping in the woods for at least 25 years

https://www.democratsforlife.org/
DEMOCRATS FOR LIFE OF AMERICA

Only a minority of our members are Catholics. Our board includes a pro-life atheist as well as a Jewish Rabbi. DFLA was supported by the late Nat Hentoff, a Jewish atheist, and Rachel MacNair, a Quaker.

May 27, 2022 — By the numbers: Today, about 26% of Democrats describe themselves as “pro-life,” according to Gallup

[Stephen Lathrop]

Except by question begging, how can anyone argue that at the moment of birth, there is any way to distinguish politically among newborns in the United States? Every potential differentiation is yet to come. Claims to differentiate them legally on the basis of their parents' citizenship may (by bad arguments) apply to questions of law, but not to questions of class membership. So long as the class definition is, "newborns in the United States," that is what every one of them is.

[minus the clever name]

Except by ignoring natural LAW you can't even entertain that thought and be an enlightened modern member of Western Civilization

"All human beings are born free and equal" in Article 1 of the Universal Declaration of Human Rights.

[dwb68]

Once the first circuit upholds this injunction on future persons, a nationwide class action banning abortion is coming to the fifth circuit.

Bet on it.

[JoeFromtheBronx]

But, again, this is not my area of expertise.

Appreciate the humility. A history professor with a PH.D. will not know about every area of history. The same applies to those with legal expertise.

[minus the clever name]

But the common person will have common sense about common things of which this is one

“[ Legal ]Philosophy has no other root but the principles of common sense.; it grows out from them, and draws its nourishment from them; severed from this root, its honours wither up, its sap is dried up, it dies and rots.” Thomas Reid, well known at our Founding

When we come to be instructed by Philosophers, we must bring the old light of common sense along with us, and by it judge of the new light which the Philosopher communicates to us. But when we are required to put out the old light altogether, that we may follow the new, we have reason to be on our guard.”
― Thomas Reid

[Longtobefree]

Well, at least this judge knows what a woman is.
Will the diversity hire recuse when this gets to the supreme court next week?

[Poxigah146]

Do leftists who support birthright citizenship realize how much ammunition they're giving to conservatives to have very strict immigration enforcement?

[John F. Carr]

Do class actions work differently when the class members are minors? Normally children are represented by their parents.

[Longtobefree]

And, much to the dismay of democrats, this judge seems to think that parents are one woman and one man. And that men and women are somehow different. Worse yet, that the man cannot bear the child.

[KenveeB]

"In that event, I would wonder what the point of getting rid of nationwide injunctions was in the first place, as litigants would still be able to get essentially the same remedy by another name."

I'm a little disturbed that a legal scholar would ask what the point of following the law is. Courts have jurisdiction to do certain things and not others. Sometimes the biggest part of being a lawyer is trying to figure out the right way to approach something so you'll get relief. You have to meet certain requirements to invoke a court's jurisdiction, and that doesn't change just because it's dealing with Ilya's pet issue.

[David Nieporent]

You're missing the point of Prof. Somin's question, I think. The question isn't, "Why should the courts follow the law?" If required to address that issue, they should. But they're not required to address the issue, in two ways;

1) Why should SCOTUS have used up one of its rare, precious cert grants on an issue that doesn't affect outcomes?

and

2) Why should conservative litigators have spent so much time fixating on this issue if it doesn't change the actual outcomes?

Clarence Thomas has repeatedly suggested that he doesn't think substantive due process is a thing, but that many of the things currently protected by SDP could still be protected under the P&I clause instead. And both litigators and his colleagues have looked at that and said, "Um, then why should we bother addressing this otherwise academic issue?"

[Your Public Name Here]

Maybe because he could be part of a majority that didn't believe in SDP but part of a minority that believed in P&I protections?

[Jett's Pop]

Agree. One could just as readily ask "Why bother having a class action procedure if the same result can be achieved without bothering to go through it?"

[loki13]

For those actually interested in the facts prior to the ruling from the Supreme Court, this might be an interesting place to start:

https://www.congress.gov/crs-product/R48467

And by interested in the facts, since it's a deep read, I would suggest actually trying to understand it (and the sources) before immediately going to a "DERP! I found this number, and therefore suck it other side!" Not that I expect anyone to bother with quaint things like facts or nuance.

Anyway, I think that the differences in law and equity (the old chancery) are interesting but beyond the scope of whatever suffices for discourse that is left here. I am somewhat torn on the merits and reasoning of the Supreme Court decision, but I don't think that it is either necessarily incorrect nor correct.

I do think that regardless of the legal (or, heh, equitable) merits, the timing, in combination with so much other timing, has continued to give rise to ... the appearance of a lack of regular process. In other words, the Court uses expedited procedures and the "shadow docket" to make sure that Trump's issues are heard; and will narrow and tailor the issues in order to resolve even the most egregious ones in a manner that does as little damage as possible to the Executive Branch- a practice that dates back to his first term. On the other hand, during the Biden Administration, the Supreme Court was much more hesitant to act expeditiously to act in that manner.

Now, of course, we see another area where the Supreme Court has ensured that the Executive Branch (assuming they are not operating in accordance with established norms) can choose to act unlawfully, even egregiously so, knowing that judicial review is slow and you can't put the toothpaste back in the tube.

Oh, as for the certification? Seems legit, although my experience is more trying to attack class-certification in scenarios that are fact dependent. It is certainly what the Supreme Court opened the door to allow explicitly, and if this isn't what they meant, I imagine that they will EXPEDITE a proceeding to let us know.

[Gasman]

Citizenship. Let's think outside the box, like Heinlein posited in some of his novels.
Two classes of citizen. Those where were citizen by happenstance of birth or some other event not directly under their personal decision making, and full voting citizenship granted after a period of service to the country after reaching age of majority.
This has direct parallel to the founding of this country, where voting was usually limited to those with direct stakes to a community, usually the ownership of land, and of course being male. But that was unfair because it still placed voting citizenship in the hands of people who did nothing other than be born the right sex and to the right landed family.
So the modern version, service as an adult, seems egalitarian. Anyone can become a voting citizen. Some, perhaps many, will find that giving something of themselves is not worth full citizenship and the vote.
But it is a choice and an effort that people make. Not merely passively accrued by being born in a particular geographic boundary.

[loki13]

I mean, it's a proposal.

But it would require a constitutional amendment. Just like changing birthright citizenship would. Do you remember when there were people who kept yelling that if you didn't like what the Constitution said, you needed to amend it?

Those same people who are like, "The President can totally change the Constitution, on his own, with an executive order. No big deal. Guys in my high school used to do it all the time."

[Stephen Goldstein]