Citizenship Class Action
Federal judge again blocks Trump’s birthright citizenship order
Citizenship chaos is playing out in the courts. Last month, the U.S. Supreme Court sided with the Trump administration’s effort to deflect legal challenges to the president’s executive order rewriting the law of birthright citizenship. Hearing a class action lawsuit filed after the Supreme Court’s ruling, last week a federal court again put Trump’s attempt on pause.
In a split decision issued in June, the majority of justices announced that federal judges can’t block Executive Branch agencies from carrying out their policies against everyone. Courts are only empowered to stop federal agencies from acting illegally toward people who themselves sue the government. Justice Amy Coney Barret, writing on behalf of the majority of her colleagues in Trump v. CASA, suggested that people who are concerned about illegal government activities file class action lawsuits instead of asking judges to issue broad blocks called universal injunctions. Several organizations immediately filed class actions against the federal government.
Continuing the unbroken series of wins in the lower federal courts, a judge in New Hampshire sided with people trying to keep intact more than 125 years of constitutional law. The administration can’t enforce Trump’s order against people born on or after February 20, 2025 to a father who was not a U.S. citizen or permanent resident if, at the time of the child’s birth, the mother was in the United States on a temporary visa or without the federal government’s permission, District Judge Joseph N. Laplante announced in Barbara v. Trump. The judge’s order applies nationwide but won’t go into effect before Thursday to give the Trump administration time to appeal.
To avoid conflicting with the Supreme Court’s decision in Trump v. CASA, a group of parents sued the government on their behalf and on behalf of their children. They asked the court for permission to represent every child targeted by Trump’s order as well as their parents—the class that gives class action litigation its name. Judge Laplante only partly agreed. Having the government deny someone citizenship under a creative interpretation of the Fourteenth Amendment that contradicts more than 125 years of legal decisions and Executive Branch practice is the kind of injury that permits a lawsuit, the judge decided. If they convince a court that the executive order is indeed illegal, a court can enter an order that would help all the children. That was enough for the judge to approve a class of people consisting of children born on or after February 20, 2025, the date on which Trump’s executive order says the federal government will start inquiring about the parents’ citizenship and immigration status.
In contrast to the kids who are directly targeted by Trump’s executive order, the parents can’t sue because the executive order doesn’t affect their citizenship, Judge Laplante concluded. On a practical level, of course, the parents will be involved in the lawsuit since their children are no older than five months old.
The Supreme Court’s suggestion that advocates look to class action lawsuits as a potential vehicle for challenging illegal government policies raises the stakes of meeting the requirements for this type of group litigation. Class actions are governed by the Federal Rules of Civil Procedure, the binding handbook for all civil lawsuits in federal court. Rule 23(a) permits class actions only if there are so many injured parties that it’s not practical for all of them to be identified and invited to participate in a single lawsuit (called numerosity); the legal issues affecting all the parties are similar (called commonality); the claims that the named parties plan to raise are typical of what the other parties would do (called typicality); and the named representative parties are likely to protect the interests of other parties fairly and adequately.
Lawyers for the Justice Department argued that the lawsuit shouldn’t be allowed to move forward because it doesn’t satisfy two of the rule’s requirements: commonality and typicality. According to the federal government’s lawyers, some children will have legal claims and others won’t depending on the citizenship and immigration status of their parents. Judge Laplante firmly rejected this argument. Since legal residence of a parent has been irrelevant to birthright citizenship for more than a century, the judge declined the Trump administration’s invitation to stop the lawsuit in its tracks by giving importance to an unconventional feature of the president’s interpretation of the Fourteenth Amendment.
Like with its earlier defense of Trump’s order, the Justice Department may focus on the requirements for class action lawsuits rather than the legality of Trump’s interpretation of birthright citizenship. On appeal, the government is likely to revive its attack on the commonality and typicality requirements. Justice Department lawyers are also likely to reiterate their view that the judge’s ruling should be limited to New Hampshire and that it shouldn’t involve children who haven’t yet been born.
The New Hampshire decision is only the first in a case attacking the birthright citizenship executive order since the Supreme Court’s intervention last month. A similar lawsuit is pending in a Maryland federal court.