Three days after the Supreme Court said litigants attempting to get court orders broadly blocking President Donald Trump’s policies must do so through class action lawsuits, an administration lawyer said it plans to oppose such legal maneuverings in cases challenging the executive order seeking to end birthright citizenship.
The statements from Justice Department attorney Brad Rosenberg came during separate federal court proceedings Monday in cases brought in New Hampshire and Maryland against Trump’s executive order, which was blocked by judges around the country through a series of universal injunctions.
The Supreme Court on Friday curtailed the ability of lower court judges to issue such universal rulings — while also leaving intact the ability of plaintiffs to get similar relief through class action lawsuits.
Attorneys representing the plaintiffs in the New Hampshire and Maryland cases raced back to court to bring class action lawsuits, asking judges overseeing their cases to certify a class of individuals that would include born and unborn babies who could be impacted by Trump’s order and their parents.
Asked by the two judges whether the department will be opposing such class certification, Rosenberg said, “yes.” The DOJ is expected to file more written legal arguments backing up its position in coming days.
Such class-action litigation could potentially lead to the same outcome as nationwide injunctions – and during arguments in the case before the Supreme Court, several justices questioned the significance of shifting the emphasis to class-action suits. One difference is that a judge generally must take the extra step of thinking about who should be covered by an injunction.
At the time, Solicitor General D. John Sauer was careful to not reveal the department’s position when pressed by the justices on whether the administration would oppose certifying a class in the cases challenging Trump’s order.
“I do not concede that we wouldn’t oppose class certification in this particular case. There may be arguments that this case is or is not appropriate for class certification,” Sauer said during a back and forth with Justice Amy Coney Barrett during oral arguments. Barrett eventually wrote the opinion the court issued Friday.
Pressed by Justice Brett Kavanaugh on the issue, Sauer said at the time that the administration’s “position is not that class certification will necessarily be granted.”
“Our position is that (class certification) is how these sorts of claims should be channeled,” he added.
The two federal judges – Joseph Laplante of New Hampshire and Deborah Boardman of Maryland – are demanding the administration put in writing whether it believes officials can soon begin deporting babies under Trump’s birthright citizenship executive order.
Boardman told Rosenberg that the government’s position is “important” as she considers whether to issue an emergency ruling blocking the executive order.
“I want to know if the government thinks it can start removing children from the United States who are subject to the terms of the executive order and who are not the plaintiffs or members of the plaintiff organizations,” the judge said Monday.
Boardman said she wanted the Justice Department to tell her by noon Tuesday “the government’s view of what it can and can’t do under the executive order consistent with the Supreme Court’s decision.”
Her interest in whether the order could be enforced right now came after an attorney for the plaintiffs in the case – two immigrant rights groups and several expecting mothers – argued to her that even though the high court paused enforcement of a key part of the order for 30 days, the government could lean on other provisions of the order to remove some newborns.
Rosenberg later told Boardman that his “understanding is that the executive order will not be operative for 30 days,” but the judge appeared somewhat skeptical of the veracity of his comment.
“I don’t know what the US will or won’t do, with respect to children under the executive order, after July 26” when it’s effective, Boardman said. “I’m trying to figure out what the government’s position is now, and whether the government will be attempting to enforce the executive order between now and July 26.”
Boardman, an appointee of former President Joe Biden, had indefinitely blocked Trump’s birthright citizenship executive order through a nationwide injunction.
The plaintiffs in the case quickly refiled as a class action suit following the Supreme Court ruling and also asked her for an emergency order that would block Trump’s order from affecting members of a “putative class” of individuals who would otherwise be impacted by the policy.
Laplante directed Rosenberg to submit similar court filings by Wednesday – though the plaintiffs in his case have not requested an emergency court order.
CNN’s John Fritze and Molly Reinmann contributed to this report.