US presidency: litigants turn to class actions to hold Trump administration to account
A major ruling by the US Supreme Court has sharply curtailed the ability of judges to impede presidential policies nationwide, while providing an avenue around that prohibition in the form of class actions.
The case – Trump v Casa – challenged the President’s executive order restricting birthright citizenship. The Supreme Court held in June that federal courts lack the authority to issue nationwide injunctions – which control how the government acts toward everyone in the country, not just the parties in the case at hand – because they exceed the powers granted to courts by Congress. The Court didn’t address the constitutionality of the actual order, however.
Donald Trump’s second presidency has seen a record number of nationwide injunctions being issued against his administration. Greg Siskind, Co-Chair of the IBA Immigration and Nationality Law Committee, believes that the Supreme Court was attempting to make it a little more difficult for judges to close down policies on a national basis, rather than take that power away from them entirely. ‘It was becoming too easy for every policy that a president was rolling out to be shut down,’ he explains.
Trump v Casa made it more difficult to get the national relief on the front end in the same timeframe […] but that doesn’t necessarily really change the outcome
Greg Siskind
Co-Chair, IBA Immigration and Nationality Law Committee
‘There’s been a lot of things that are more blatantly unconstitutional and blatantly beyond what the statute permits, which is probably why there were a lot more of these TROs [temporary restraining orders] granted against Trump than against [Presidents] Biden or Obama,’ adds Siskind, a founding partner at Siskind Susser in Tennessee.
Within hours of the Supreme Court ruling, a case with the same parameters as Trump v Casa was filed – this time, however, the attorneys moved for a preliminary injunction on behalf of a proposed nationwide class of infant children subject to the executive order, as well as their parents. Two weeks later, a New Hampshire federal court certified the proposed class in the case – Barbara v Trump – a process that, even on an expedited schedule, tends to take six to seven months.
Several other lawsuits challenging President Trump’s executive orders have been pursued under a class action basis. In July, for instance, a Seattle court ruled that a legal challenge to the Trump administration’s suspension of refugee resettlement could move forward as a class action lawsuit on behalf of all impacted refugees.
The primary impact of Trump v Casa is that litigation against the President’s executive orders will take longer and require more resources because it’s simply more difficult to put together a class action than an individual case, says William Stein, Chair of the Appellate Practice Group at Hughes Hubbard & Reed in Washington, DC.
Pending and future class actions will have to meet the requirements of Rule 23 of the Federal Rules of Civil Procedure to have a class certified and obtain injunctive relief. ‘It’s not simply a matter of drafting a complaint. You have to put together some evidence supporting the contention that you meet all the requirements of Rule 23, so that the court has a basis to certify a class,’ explains Stein. These requirements include, for example, assembling proper class representatives.
Federal courts may opt in certain cases to grant so-called provisional certification to a class. According to Siskind, a court would probably make a determination on such provisional class certification quickly if they viewed the case as an emergency. For the administration, it’s a win, he says, because its policies are going to be rolled out – if only for a very brief period of time – given that Trump v Casa has made it more difficult to obtain TROs.
However, Trump v Casa is ‘not as big of a win for the administration as I think was predicted at the very beginning. It’s basically made it more difficult to get the national relief on the front end in the same timeframe that we were seeing before, but that doesn’t necessarily really change the outcome,’ says Siskind. He highlights here the high success rate of the many lawsuits that have challenged executive orders.
Patricia Brum is an LA-based partner at Snell & Wilmer and experienced in handling class action defence. She questions how using class action to obtain constitutional relief will ‘play out’, asking ‘how are you going to give notice to all the potential class members? How are you even going to identify them?’ For example, referring to the Trump v Casa case, she queries how the people born after the executive order went into effect whose mother or father are not lawful residents or citizens of the US would be identified. ‘That information is not centralised and it’s not within one person,’ she says. ‘It may be information that you don’t typically disclose or you’re not required to disclose.’
Brum says the lawsuits would have to fully play out before these certification questions are definitely resolved. ‘You’re going to see the same judges that would grant the universal injunctions prior to Trump v Casa be more lenient and certify these classes, so that they can issue the nationwide relief injunctions that the plaintiffs are seeking,’ she says. However, she adds that a class certified by a district court may be decertified at a later point in the litigation process.
The silver lining for the groups challenging the executive orders is that the recent class actions will be more procedurally defensible if they end up before the nation’s highest court, Stein says. He believes that at least the procedural basis for injunctions in class actions will probably be upheld at the Supreme Court level. ‘Whether they will agree on the substance of the case, the merits of the case; is an entirely different question,’ adds Stein.
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