In the aftermath of the Supreme Court's ruling on June 27 invalidating universal injunctions as the remedy imposed by three federal district courts that had determined that President Trump's Executive Order limiting birthright citizenship (the "Executive Order") is unconstitutional, a Federal District Court in New Hampshire, in a one-page order, provisionally certified a class (the "Class") composed of:
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.
Immediately following the issuance of provisional certification of the Class, the Court, in a one-page order, issued a universal preliminary injunction against the Federal Government, prohibiting it from enforcing the Executive Order. The beneficiaries of the injunction are all persons in the Class, not just the named-plaintiffs.
The District Court stayed its orders for 7 days in order to give the Government time to appeal the orders. The Government opposed both motions and will undoubtedly seek a stay from the First Circuit Court of Appeals and then, if necessary, the Supreme Court.
This is the first set of orders issued by a district court that purports to follow the blueprint of the Supreme Court to use class certification as an alternative to seeking a universal injunction in a non-class, individual case. If the stays are denied by the Circuit Court and Supreme Court, this case might prove to be a harbinger of how plaintiffs who desire universal injunctions will proceed in challenging the validity of Federal statutes, regulations and executive orders.
When the Supreme Court in the CASA v. Trump majority opinion suggested that class certification might be an acceptable way for plaintiffs to obtain a universal injunction, it cautioned that it would not approve of a District Court rubber stamping a class certification motion and that the District Court must conduct a painstaking review to satisfy itself that the plaintiff has satisfied all of the requirements of Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure (which apply to class motions seeking only equitable relief). I have serious doubt whether the one-page conclusory order issued by the District Court in this case will satisfy those requirements.
While filing a class action complaint might work in this case and other cases where plaintiffs are challenging federal statutes, regulations and executive orders, that strategy is less promising in cases brought by industry trade groups that are trying to enjoin the Government from enforcing an unlawful statute, regulation or executive order. Those trade groups are motivated in such instances to help their members and there is little reason for them to embark on filing a class action which is generally not needed in order to obtain complete relief for their members. Class actions greatly increase the complexity and cost of the lawsuit and extend the time needed to obtain a satisfactory result.
If it is important for a trade group to obtain universal relief in challenging a regulation, it may be possible to proceed under Section 706 of the Administrative Procedure Act which authorizes a court to "vacate" or "set aside" an unlawful regulation without the need to obtain injunctive relief. There is great uncertainty and scholarly debate as to whether a court would be authorized to issue a preliminary order at the outset of a case preliminarily vacating or setting aside a regulation. Section 706 might apply only at the end of the lawsuit in which the plaintiff has prevailed.
Also, as stated in our earlier blog about the Supreme Court case, there is concern that the Supreme Court might in a future case override its opinion that grants associational standing to trade groups to seek relief on behalf of their members. Justice Thomas strongly believes that associational standing is unconstitutional under the "case or controversy" clause. Such a result would make it much more difficult for the industry to challenge an unlawful statute, regulation or executive order.
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