Concord, New Hampshire
CNN
—
A federal judge agreed Thursday to issue a new nationwide block against President Donald Trump’s executive order seeking to end birthright citizenship.
The ruling from US District Judge Joseph Laplante is significant because the Supreme Court last month curbed the power of lower court judges to issue nationwide injunctions, while keeping intact the ability of plaintiffs to seek a widespread block of the order through class action lawsuits, which is what happened Thursday in New Hampshire.
Ruling from the bench, Laplante granted a request from immigration rights attorneys to certify a nationwide class that “will be comprised only of those deprived of citizenship” and issued a preliminary injunction indefinitely blocking Trump’s Day One order from being enforced against born and unborn babies who would be impacted by the policy.
“The preliminary injunction is just not a close call to the court,” Laplante said during a hearing. “The deprivation of US citizenship and an abrupt change of policy that was longstanding … that’s irreparable harm.”
US citizenship, the judge added, “is the greatest privilege that exists in the world.”
The judge, an appointee of former President George W. Bush, said he would pause his order for several days to give the Trump administration time to appeal his decision.
Laplante’s ruling could prove to be a critical bulwark against Trump’s policy as other courts scramble to take a second look at their decisions in light of the Supreme Court’s ruling.
In February, Laplante indefinitely blocked the Trump administration from enforcing the order only against members of several nonprofit groups who would have been impacted by it.
“I’m the judge who wasn’t comfortable with issuing a nationwide injunction. Class action is different,” the judge said at one point during Thursday’s hearing. “The Supreme Court suggested class action is a better option.”
In his ruling earlier this year, Laplante said Trump’s order “contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.”
Several other judges similarly ruled that Trump’s order was unconstitutional, but their injunctions applied nationwide and prompted the administration to mount the series of appeals that eventually landed before the Supreme Court.
Thursday’s proceeding focused largely on the request from immigration rights attorneys who brought the legal challenge for Laplante to certify a class of individuals that would include “all current and future children” who would be affected by Trump’s order, and their parents. The judge’s ruling Thursday did not include the parents in the class.
The judge appeared sympathetic to arguments pushed by the Justice Department that certifying a class including the parents might run up against the federal rules regarding class certification if those adults each had immigration situations that were significantly different from another adult in the class.
DOJ attorney Eric Hamilton had wanted the judge to allow for discovery so more information could be gathered on the adults who are part of the legal challenge, but the judge, aware of the urgency of the litigation, noted that such court-ordered fact-finding wouldn’t be feasible.
“You’re right, (ordinarily) we’d conduct discovery before granting class certification,” Laplante said. “There’s no time for discovery.”
“No court in the country has agreed with the administration on the underlying constitutional question. Every court has said that this order is unconstitutional, and so we expect to prevail on that question,” said Cody Wofsy, an American Civil Liberties Union attorney who helped bring the pair of New Hampshire cases. “The issue before the court on Thursday is ultimately just: procedurally, how are we going to ensure that every single child is protected?”
Class action lawsuits require “class representatives,” or individuals who, if the class is certified, will represent the class members.
In this case, those proposed representatives had included a Honduran asylum-seeker – referred to in court papers as “Barbara” – who is living in New Hampshire and expecting a baby in October, and a Brazilian man – referred to as “Mark” – who is attempting to get lawful permanent status. Mark’s wife – who is not in the US lawfully – gave birth in March.
“If the Order is left in place,” the lawyers wrote, “those children will face numerous obstacles to life in the United States, including stigma and potential statelessness; loss of their right to vote, serve on federal juries and in many elected offices, and work in various federal jobs; ineligibility for various federal programs; and potential arrest, detention, and deportation to countries they may have never even seen.”
Signed by Trump on January 20, the executive order, titled “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP,” said that the federal government will not “issue documents recognizing United States citizenship” to any children born on American soil to parents who were in the country unlawfully or were in the states lawfully but temporarily.
The Supreme Court said in its June 27 ruling that the administration cannot begin enforcing the order for 30 days, though the government is allowed to begin developing guidance on how the policy will be implemented.
In the other challenges to Trump’s order, lower courts around the country have asked the parties to submit written legal arguments addressing how the Supreme Court’s ruling could impact the nationwide injunctions issued in those cases, and more court proceedings are expected in the coming days and weeks.
But that process will take time and it’s unclear whether any of those courts will narrow their injunctions ahead of when Trump is permitted to enforce the birthright policy.
“I feel like we’re the only people who rushed around here,” Laplante quipped during Thursday’s hearing.
This story and headline have been updated with additional developments.
