When the Supreme Court ruled out nationwide injunctions in Trump v. CASA, Inc, we hoped that the era of single rogue judges vetoing Trump administration policies had come to an end. Some pointed out, however, that the class action avenue remained. No way, I said: you can’t get instant relief via a class action, you spend the first year litigating the class issues.
I was wrong. Earlier today, a New Hampshire judge, Joseph Laplante, issued an order granting the ACLU’s Motion for Provisional Class Certification and Appointment of Class Counsel. The named plaintiff is designated simply as “Barbara,” and I take it the real party in interest is the ACLU. The case challenges President Trump’s executive order on birthright citizenship.
The order “provisionally” certifies the following class:
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.
So the provisional class includes people who haven’t been born yet.
I was unfamiliar with the concept of provisional class certification, but it turns out that the idea has been endorsed by, at least, the liberal Ninth Circuit Court of Appeals. The concept is said to be appropriate in cases where the real issue is injunctive relief. That is the case here: all the ACLU wants is an order barring the Trump administration from carrying out its policy with regard to birthright citizenship.
Judge Laplante’s order does not address the merits of the case, but I take it that no judge would certify this “provisional” class and appoint the ACLU (in effect) to be in charge of the case unless he intended to follow up, speedily, with an order telling the Trump administration that it can’t implement its intended policy. So the nationwide injunction appears to be back.
The Supreme Court will need to address this workaround, designed to avoid its ruling in Trump v. CASA, Inc. Even more important, the Supreme Court will have to decide who is an American citizen. I have argued for years that the idea that every person born in the United States is automatically a citizen is wrong. That used to be a minority view; I am not sure it is anymore. Recent scholarly work has strongly supported the Trump administration’s position, which I hope will eventually be adopted by the Court.
In the meantime, the Court will need to address the Left’s latest effort to install judicial hegemony, by effectively nullifying Articles I and II of the Constitution.
This is Judge Laplante’s order:
Barbara Order Granting Class Cert by John Hinderaker on Scribd
