The Supreme Court Limited Lower Courts' Power to Stop Trump's Lawlessness. A Judge Is Trying Another Way.
Donald Trump won the presidency in part on promises to deport immigrants who have criminal records and lack permanent legal status. But his earliest executive orders—trying to undo birthright citizenship, suspending critical refugee programs—made clear he wants to attack immigrants with permanent legal status too. In our series Who Gets to Be American This Week? , we'll track the Trump administration's attempts to exclude an ever-growing number of people from the American experiment.
Last month, the Supreme Court limited the use of nationwide injunctions , which allow judges to block policies they have found unlawful from going into effect nationwide. Now a New Hampshire judge is road-testing a substitute: He has temporarily blocked Donald Trump's birthright citizenship executive order by certifying a class action to cover babies born in all 50 states.
This marks the next stage of a messy legal fight that raises new questions about how to apply the Supreme Court's decision in Trump v. CASA , and the degree to which class-action lawsuits can allow the lower courts to serve as a check on the executive branch's power.
Plus, a new court document appears to upend the Trump administration's long-standing claim that it has no jurisdiction over the Venezuelan migrants it removed to El Salvador four months ago.
Here's the immigration news we're keeping an eye on this week:
On Thursday, US District Court Judge Joseph Laplante granted class action status to a group of immigrant mothers with children who stand to be impacted by Trump's birthright citizenship executive order .
Laplante granted the plaintiffs class action status but also extended the class to include all current and future babies born on or after Feb. 20, 2025, to a mother without legal status and a father who is not a US citizen or lawful permanent resident at the time of their baby's birth. Mothers legally present in the US but only temporarily—tourists and other visa holders—are also included.
Technically, Laplante is not using the kind of “universal injunction” that the Supreme Court prohibited in last month's Trump v. CASA . But so far, the result is more or less the same: The classwide injunction in this case applies nationwide, since members of the class that the plaintiffs represent reside all over the country.
The justices indicated in their decision in Trump v. CASA that class actions could serve as a more appropriate substitute to nationwide injunctions. “Judge Laplante is doing exactly what the Supreme Court contemplated,” said Elora Mukherjee, clinical law professor at Columbia University and director of the school's Immigrants' Rights Clinic.
However, class-action lawsuits are tricky, as a judge must consider if a group of plaintiffs satisfy a series of requirements; universal injunctions can more easily offer blanket protection for any person within the country. Laplante's order also creates a new set of questions: Should children not yet born be included? The judge argues they should, as these “future persons” stand to be harmed by Trump's executive order just as much as babies currently present in the US However, as Slate's Mark Joseph Stern explained on a bonus episode of Amicus , the Department of Justice thinks differently:
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.
Laplante stayed his injunction for seven days in order to allow the Department of Justice time to appeal his decision. Meanwhile, the Supreme Court gave the federal government 30 days from its June 27 decision on CASA to begin enforcing Trump's birthright executive order, which is coming up in just a couple of weeks.
After he spent over three months in El Salvador's notorious CECOT prison and was finally flown back to the US last month, Kilmar Abrego Garcia was placed in pretrial detention over a dubious criminal indictment . Despite a judge ruling he is eligible for pretrial release, his lawyers requested he remain incarcerated because the federal government has threatened to deport the Maryland father if he is released. But when pressed on what the government's deportation plan details, Immigration and Customs Enforcement assistant director Thomas Giles admitted they don't know.
Giles testified in court following US District Court Judge Paula Xinis' order that the government provide someone with firsthand knowledge of any third country Abrego Garcia could potentially be deported to. Giles said that Abrego Garcia is not currently under ICE custody, so the agency cannot make a decision about where to send him yet. He said that if released, Abrego Garcia would receive a notice of removal and a credible fear interview, a process where immigrants can express legitimate fears of prosecution in their country of origin. ICE can then determine whether to remove him to a third country instead, a practice the Supreme Court recently made easier .
That seems to contradict what Attorney General Pam Bondi declared a month ago when she announced the criminal indictment against Abrego Garcia. During a press conference , she said, “Upon completion of his sentence, we anticipate he will be returned to his home country of El Salvador.” Adding to the confusion, during a separate court hearing with Xinis in late June, DOJ lawyer Jonathan Guynn said that the government does not intend to wait until Abrego Garcia's trial to deport him.
“It's like trying to nail Jell-O to a wall trying to find out what is going to happen next week,” Xinis said. A separate judge will hold a hearing on July 16 to consider Abrego Garcia's pretrial release. Xinis also emphasized that it is within her jurisdiction to ensure he is “not spirited away again” without due process to yet another country.
Abrego Garcia, originally from El Salvador, came to the US in 2012, claiming he faced death threats and extortion from a local gang. A judge granted him protection from deportation in 2019, yet he was swept up in a rushed deportation effort back in March, to none other than El Salvador. New court documents allege that once he was inside CECOT, Abrego Garcia was “subject to physical abuse” and lost approximately 31 pounds over the course of two weeks.
For months now, the Trump administration has insisted that the Venezuelan immigrants sent to El Salvador without due process back in March are no longer under US custody, and therefore it is powerless to bring them back. A new court document appears to contradict that narrative, as El Salvador went on the record saying it holds no jurisdiction over the people the US sent to CECOT.
In an ongoing lawsuit against the Trump administration, lawyers for the Venezuelan immigrants submitted a new court document detailing El Salvador's response to a United Nations inquiry about US deportations. The agency had previously flagged that Trump's invocation of the Alien Enemies Act appeared to be “ contrary to international law .” According to El Salvador, its authorities “have not arrested, detained or transferred” any persons sent to the country on Trump's deportation flights, insisting that it is simply facilitating the use of its prison infrastructure for the custody of detained immigrants under an agreement with the US “In this context, the jurisdiction and legal responsibility for these persons lies exclusively with the competent foreign authorities,” the Salvadoran government wrote.
US District Court Judge James E. Boasberg has been overseeing this case since March, when the Trump administration first challenged his order blocking the flights. The Supreme Court lifted Boasberg's restraining order and allowed Trump's invocation of the Alien Enemies Act to move forward. But it then clarified that migrants targeted under the act are entitled to contest their removal. A set of migrants then returned to Boasberg's court seeking relief .
Last month, Boasberg issued a scathing order pressing the federal government to facilitate the Venezuelan immigrants' ability to seek habeas relief to contest their removals. Boasberg also acknowledged that the US and El Salvador seemed to have “struck a diplomatic bargain vis-à-vis the detainees.”
“We are pleased that El Salvador publicly told the truth about what we all knew: that it's the United States that controls the fate of the Venezuelans,” Lee Gelernt, lawyer at the American Civil Liberties Union, said, according to the New York Times . The ACLU, along with other legal groups, is representing the men in their lawsuit. “That the United States did not provide us or the court with this information is extraordinary.”
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