WASHINGTON — Almost as soon as the Supreme Court released its ruling limiting the ability of judges to block President Donald Trump’s plan to end birthright citizenship, challengers brought new legal claims seeking the same result by a different means.
While the court on Friday said judges cannot issue sweeping “universal injunctions” that can apply nationwide in many cases, it left open the option of plaintiffs seeking broad relief via class action lawsuits.
The American Civil Liberties Union filed such a lawsuit in New Hampshire on behalf of immigrants whose children may not obtain U.S. citizenship at birth if Trump’s order were to go into effect.
In a separate case in Maryland, in which groups had obtained a nationwide injunction, lawyers filed an amended complaint seeking similar class-wide relief for anyone effected by Trump’s plan within hours of the ruling written by Justice Amy Coney Barrett.
“Every court to have looked at this cruel order agrees that it is unconstitutional,” said ACLU lawyer Cody Wofsy. “The Supreme Court’s decision did not remotely suggest otherwise.”
Under Trump’s plan, birthright citizenship would be limited to those who have at least one parent who is a U.S. citizen or permanent resident. That is at odds with the widely accepted understanding of the Constitution’s 14th Amendment — that it grants citizenship to anyone born in the U.S., with a few minor exceptions.
William Powell, a lawyer involved in the Maryland case, told reporters that the amended complaint would seek to “certify a nationwide class of all people who are affected by the executive order.”
That would include babies already born and babies to be born in the future, as well as their parents, he said.
Justice Brett Kavanaugh, in a concurring opinion on Friday, appeared to endorse the idea of class action lawsuits, saying that plaintiffs can “sometimes seek to proceed by class action … and ask a court to award preliminary class-wide relief that may, for example, be statewide, region-wide, or even nationwide.”
The Supreme Court limited the scope of the injunction in the Maryland case, as well as two other nationwide injunctions imposed by judges in Washington state and Massachusetts in cases brought by states.
States cannot bring class action lawsuits, but Barrett wrote in her opinion that they may still be able to seek broad relief in their cases. That leaves open the possibility of injunctions covering anyone who lives within a state and potentially even children who were born elsewhere but move to a covered state.
A spokesman for New Jersey Attorney General Matthew Platkin, whose state is among the challengers, said lawyers still intend to seek nationwide relief.
“We do not believe the United States will be able to show that their proposed alternatives for protecting states are practically or legally workable, and we look forward to pressing these points to the district court,” he added.
Samuel Bray, a critic of nationwide injunctions at Notre Dame Law School whose work was cited in the ruling, said both the states and individual plaintiffs can still get broad injunctions against the birthright citizenship executive order, potentially even on a nationwide basis.
“I don’t expect the executive order will ever go into effect,” he added.
It remains unclear how the Justice Department will respond to new claims.
But at a news conference Friday, Trump made it clear the administration would proactively use the Supreme Court ruling not just to bolster its birthright citizenship proposal but also to push forward on other policies that have been blocked by judges on a nationwide basis.
“Thanks to this decision, we can now promptly file to proceed with numerous policies that have been wrongly enjoined on a nationwide basis,” the president said.
He specifically noted several policies blocked by courts, including attempts by the administration to withhold funding from “sanctuary” jurisdictions that refuse to cooperate with the government on immigration and an executive order that seeks to block gender transition care for transgender people under the age of 19.
Lindsey Pipia contributed.
