Trump's war on Americans' birthright hits a class-action wall
Justice Amy Coney Barrett reminds us that the Constitution applies to everyone
Donald Trump’s war on the children of immigrants has hit an unexpected obstacle, and it comes in the form of none other than Amy Coney Barrett, appointed by none other than the Dear Leader himself.
Things were looking grim for those who think we inhabit a nation of laws last month as the Supreme Court heard Trump vs. CASA, a case that ended with a ban on nationwide injunctions, one of the key tools that have been used to at least temporarily restrain Trump from completely disregarding law and order.
Why not, Justice Coney Barrett wrote in her opinion, simply file a class action lawsuit on behalf of all children born in the United States? Not long afterward, the American Civil Liberties Union did just that and yesterday (July 11), a federal court in New Hampshire blocked Trump’s executive order scrapping birthright citizenship.
“This court finds … that the Executive Order likely contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it,” U.S. Circuit Court Judge Joseph N. Laplant wrote in his decision.
White House attorneys called the action an “end run around the Supreme Court,” perhaps overlooking Justice Coney Barrett’s role.
The ruling includes a seven-day delay to allow the federal government time to seek emergency relief from the First Circuit Court of Appeals. However, even if an appeal is pursued, the injunction is set to go into effect well before July 27 — the date on which partial implementation of the executive 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 in court.
It means what it says
The argument is based on the 14th Amendment to the Constitution, which very clearly states:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added)
As anyone who stayed awake during Constitutional Law 301 can tell you, that simple, straightforward paragraph states in no uncertain terms that all Americans (which it clearly defines) have the unquestioned right to due process and equal protection.
In other words, no one can drag people off the streets and detain them, deport them or otherwise deprive them of their liberty without a warrant or other clearly drawn legal authority. This is actually what it means to be an American and should be much more widely celebrated than it is.
“The Constitution means what it says. Period.” - The Outraged Consumer’s favorite law professor many decades ago.
Devon Chaffee, executive director of the ACLU of New Hampshire, praised the decision as “once again affirming that President Trump’s executive order to restrict birthright citizenship is a blatant violation of the U.S. Constitution.” Chaffee underscored that the Constitution ensures no politician can decide who is worthy of citizenship among those born in the country.
Seven-day delay granted
Civil rights advocates hailed the ruling as a critical safeguard against what they describe as an unprecedented attack on constitutional principles. “Parents have lived in fear and uncertainty,” said Aarti Kohli, executive director of the Asian Law Caucus. “This court’s injunction protecting birthright citizenship for all affected children is a major victory for families across this country.”
Morenike Fajana, senior counsel at the Legal Defense Fund, called the decision “a powerful affirmation of the 14th Amendment and the enduring principle that citizenship in the United States is a right by birth, not a privilege granted by politics.”
A growing judicial consensus
The decision underscores a growing judicial consensus rejecting attempts to narrow the Constitution’s promise of birthright citizenship, with Molly Curren Rowles of the ACLU of Maine emphasizing that the United States has “always been a nation of immigrants.”
Carol Rose, executive director of the ACLU of Massachusetts, concluded that birthright citizenship “makes our country strong and vibrant,” describing Trump’s executive order as “simply un-American.”
Class actions ride again
In recent years, class actions have come to be associated with consumer issues — defective products, financial chicanery, deceptive practices, etc. — but they were initially designed as a way for citizens to collectively contest government actions.
“I think these class actions are going to be very useful to hold the Trump administration accountable” now that nationwide injunctions have been blocked by Trump, Vanderbilt Law Professor Brian T. Fitzpatrick said in a National Public Radio interview earlier today.
“I they’re going to allow litigants and lower-court judges to replicate what they had been doing before the Supreme Court told them they couldn’t use these universal or nationwide injunctions,” he said.
Originally, Fitzpatrick noted, class actions were intended to allow citizens to hold the government accountable for its actions. Brown v. Board of Education, which resulted in the Supreme Court’s order desegregating schools, was a class action, he said.
Fitzpatrick is the author of “The Conservative Case for Class Actions” (University of Chicago Press, 2019) and formerly clerked for the late Justice Antonin Scalia.