What is class action certification?

Class actions occur when a person or group of people files a lawsuit on behalf of a larger group with similar legal claims, including against a law or executive order, and when the plaintiffs seek damages over a broken product or service. A class action must be certified by a federal judge and must follow the requirements outlined in Rule 23 of the Federal Rules of Civil Procedure.

Rule 23 stipulates that to qualify for a class action, the group of people included must be large enough that it would be “impracticable” to require them all to be identified and joined at the time of filing, that the legal claims over the law and the “questions of law or fact” are sufficiently similar for all those in the proposed class, and that the people representing the class “will fairly and adequately protect the interests of the class.”

The Supreme Court’s decision in Trump v. CASA last week foresaw the possibility of class actions being used to achieve goals similar to sweeping universal injunctions, which many of the plaintiffs suing the Trump administration requested and received from district judges. Justice Samuel Alito, in a concurrence, warned that Rule 23 requirements are not disrupted by the majority’s ruling in CASA, and he said courts should still hold a high standard for certifying class actions in lawsuits.

“Of course, Rule 23 may permit the certification of nationwide classes in some discrete scenarios. But district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23,” Alito wrote.

Justice Sonia Sotomayor also referred to class actions as an “important tool to provide broad relief to individuals subject to lawless Government conduct,” in her dissent from the majority’s opinion.

“The parents of children covered by the Citizenship Order would be well advised to file promptly class-action suits and to request temporary injunctive relief for the putative class pending class certification,” Sotomayor wrote.

Class action sought in some lawsuits

Liberal groups are seeking class action certification in multiple lawsuits challenging the birthright citizenship order as a way of restoring a sweeping pause in executive action.

In CASA v. Trump, one of the three cases which consolidated to the Supreme Court for the universal injunction question, plaintiffs quickly filed a motion on Friday, hours after the high court’s ruling, seeking class certification for “children who have been born or will be born in the United States” since Feb. 19 and would be deemed “ineligible for birthright citizenship” under the order, along with their parents.

The filing with the district court argued that the proposed class meets all requirements under Rule 23 and that the current lawyers for the plaintiffs should be appointed as legal representation for the proposed class.

“Counsel have spent the last several months identifying and analyzing the constitutional and statutory defects of the Executive Order, and they have worked to build the legal arguments and factual record that supported the preliminary injunction this Court previously entered,” the filing said.

In another case, State of Washington v. Trump, which was part of the consolidated universal injunction case before the Supreme Court, plaintiffs filed a similar motion in district court for class certification and requested the court act quickly.

“Expedited consideration of the motion for class certification is appropriate to ensure that, prior to the Executive Order taking effect, a properly certified class exists in this case. At the same time, if the court certifies the class, the court should modify its injunction to explicitly clarify that the injunction is provided to all class members,” a Monday filing in district court said.

As two of the three cases involved in the Supreme Court’s Friday decision seek class action, the ACLU filed another lawsuit against the birthright citizenship order in the U.S. District Court for the District of New Hampshire, where plaintiffs also seek class certification.

The Friday filing in federal court asks a judge to “provisionally certify the class and immediately issue a classwide preliminary injunction” to block the order.

The third case consolidated into the Supreme Court universal injunction case, State of New Jersey v. Trump, has not seen its plaintiffs immediately file for class certification. Instead, the plaintiffs argued that the Supreme Court’s decision may have left a narrow exception for judges to continue issuing universal injunctions when states file the lawsuits.

“The States propose an expeditious schedule to evaluate whether alternative forms of relief proposed by the United States would in fact completely remedy their injuries, or whether a nationwide order is warranted – as the States consistently maintained, and this Court previously found – to remedy their harms,” New Jersey Attorney General Matthew Platkin said in filing to a district court Monday.

Timetable before Trump’s order goes into effect

The Supreme Court’s June 27 opinion in Trump v. CASA partially stayed the existing preliminary injunctions, reducing them only to the people suing the Trump administration in those cases and allowing federal agencies to begin “developing and issuing public guidance about the Executive’s plans to implement the Executive Order.”

SUPREME COURT’S DEATH KNELL TO UNIVERSAL INJUNCTIONS CHANGES TRUMP LEGAL LANDSCAPE

Because the executive order already had a built-in 30-day pause, the new requirements for birthright citizenship would not go into effect until July 27, at the earliest. The Justice Department confirmed Tuesday in court filings that it would not begin enforcing the new rules under the executive order until July 27 but would begin developing plans for how the ban will be accomplished in the interim.

In these cases, plaintiffs suing the Trump administration do not have to worry about the birthright citizenship ban taking full effect immediately. If they seek to pause the order for members of its proposed class in a class action lawsuit, the courts must act within weeks.