Abstract
To every court to consider its merits, Donald Trump’s order purporting to end birthright citizenship for children born to undocumented parents violates the Fourteenth Amendment. But in Trump v. CASA, the U.S. Supreme Court vacated a “universal” injunction that had shielded all children from the order’s enforcement. The federal courts had issued dozens of universal injunctions
before Trump v. CASA, to stop the enforcement of executive orders that threaten transgender servicemembers, healthcare providers, scientists, and more. Now, federal courts can only issue remedies to benefit parties. Courts can rarely protect nonparties, even from policies that are illegal under all circumstances. Many of the people these injunctions had shielded, including the tens of thousands of children born to undocumented parents, are left vulnerable. Fortunately, many of the cases that had generated universal injunctions can proceed as class actions. Much, if not all, of this litigation challenges uniform, across-the-board policies whose legality can be determined for everyone at once. The federal courts have overwhelmingly favored class certification under such circumstances. Upon a class’s certification, everyone who comes within the class’s boundaries gets joined to the case as a party. Consistent with Trump v. CASA, a federal court can protect the entire class and not just one person at a time by enjoining an illegal policy’s enforcement across the board. Indeed, no twenty-first century precedent poses the slightest barrier to the swift grant of class certification in these cases. A district court’s decision certifying a birthright citizenship class exemplifies how courts should treat many challenges to Trump Administration policies going forward. Only the radical, unprincipled reinvention of class action doctrine—a reinvention wholly at odds with rule text, history, structure, and governing precedent—could deny the benefits of class action procedure to victims of President Trump’s illegal policies.
