How a Bush-Appointed Judge Got Around SCOTUS to Protect Birthright Citizenship for All
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On Thursday, US District Judge Joseph LaPlante blocked Donald Trump's assault on birthright citizenship in a ruling that applies nationwide. Despite its scope, LaPlante's order is not the kind of “universal injunction” that the Supreme Court prohibited in June's Trump v. CASA . Rather, the judge certified a class of plaintiffs that includes everyone who would be affected by Trump's policy and issued an injunction to protect their fundamental rights. This class action seeks to fill the gap that the Supreme Court created when it limited judges' power to halt unconstitutional executive actions last month.
Dahlia Lithwick and Mark Joseph Stern discussed LaPlante's decision and how judges can still defend the Constitution after CASA , on this week's Slate Plus bonus episode of Amicus. A preview of their conversation, below, has been edited and condensed for and clarity.
Dahlia Lithwick: This is the first decision on birthright citizenship since the Supreme Court rolled back three different universal injunctions in CASA last month. What did LaPlante write?
Mark Joseph Stern: He said this was an easy call: The plaintiffs meet all four requirements for a class action. First, numerosity: More than 150,000 infants could be affected by this order every year. Second, commonality: All the infants face the same legal question—whether they get birthright citizenship. Third, typicality: The lead plaintiffs face the same injury that everybody else in the class faces. Fourth, adequacy: Yes, the plaintiffs and their lawyers can represent this class fairly. So LaPlante certified the provisional class, then issued an injunction that covered everybody in it. It's not a universal injunction—it just happens to cover individuals in all 50 states.
There was a little bit of buzz after this decision came down suggesting that LaPlante's class might cover unborn children. Is he in fact going to create some kind of personhood exception that allows fetuses to be pulled into this litigation?
No, that is not what's happening here. Josh Craddock—an advocate for fetal personhood whom Trump recently appointed to the Justice Department's Office of Legal Counsel— was salivating over that possibility, as were other anti-abortion advocates; they mused that they could do something similar in the future to establish fetal personhood. [Craddock later deleted his tweet.] But LaPlante's order does not apply to fetuses or embryos. Rather, the provisional class covers infants from the moment they are born, which is when they are supposed to receive citizenship under the 14th Amendment.
So this is not fetal personhood or any kind of back door into establishing a class action on behalf of unborn children. This is about making sure there's not a loophole through which the government could rush to deny these infants citizenship before their parents can formally add them to the class. There have been plenty of other cases in which a judge has certified a class that covers children who will come into a specific situation in the future, even if they aren't in it right now, even if they don't yet exist—class actions involving the detention of undocumented minors, for instance, or those in foster care. That's what's going on here.
It seems as if everything you've described about this class certification is just obviously correct, and I'm trying to figure out what the DOJ is going to squawk about. Can you walk us through its objections?
The department argued that future children can't be class members now because they don't exist yet. And it claimed that protecting their rights before they come into the world would somehow violate the due process clause by resolving their legal rights before they exist as “parties.” Again, that doesn't make any sense under the law, because there have been plenty of class actions that are forward-looking and encompass parties as they face harms. Here, the infants will face harms the moment they come into the world, which is why the class must cover them as soon as they're born. The government's argument is also achingly hypocritical for an administration that does not respect the due process rights of actual immigrants who exist today.
The DOJ tried as well to smuggle in an argument that really goes to the merits of the case. It said that the immigration status of the class members' parents will vary: Some will have lived here for years; others are recent arrivals. Some are undocumented; some have temporary visas. And the government claimed that the class members' rights under the 14th Amendment might ultimately depend on their parents' exact immigration status and “domicile” in the United States. LaPlante responded that those details are irrelevant, because he already ruled that immigration status and domicile have no bearing on the legal question of whether a child born to immigrants must get citizenship regardless of their parents' legal status. He would not let the government use its bogus constitutional claims to thwart class certification.
I guess my only lingering question is: Isn't this functionally identical to a nationwide injunction? In CASA , Justice Amy Coney Barrett suggested that class actions might be an alternative, and now LaPlante has just given one to her?
Basically. And if there were ever a case where a nationwide class action should prevail, it's this one, right? There will be children everywhere in the US who are affected by Trump's policies in the exact same way. It's not LaPlante's problem that his order happens to cover people in all 50 states. He cannot rationally limit it to people born in a certain geographic area. So he took Barrett at her word in CASA that she wasn't taking away class actions that apply nationwide. But he did stay his injunction for seven days so the government can appeal.
Since CASA came down, you and I have wondered if the Supreme Court's unholy beatdown of district court judges is going to chill them from doing the right thing, especially married to threats against trial court judges and the sense that nobody's fighting for them. Here we have a Bush judge saying: You know what? I don't need anyone to fight for me. I know what's right. He doesn't seem chilled at all.
Not at all. He's going for it. And this is not a flaming liberal; in fact, he's the one judge in the first round of litigation over this issue which did not issue a universal injunction, issuing instead a very limited remedy. So he has already shown that he's not trying to expand his jurisdiction beyond what's proper. He has been taking this case carefully. I think that gives him a lot of credibility to now come to the table as the first judge after CASA to certify a class action that applies nationwide. He's doing whatever he can to try to protect the 14th Amendment. Because if you can't have universal injunctions and you can't have class actions, then you really can't have constitutional rights at all.
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