The lawsuits were filed by the plaintiffs in two cases challenging his prior order, which the Supreme Court had struck down.
A few days ago, I discussed Trump’s latest birthright citizenship executive order and argued that a large portion of it is unconstitutional in light of the Supreme Court’s ruling in Trump v. Barbara, which invalidated his prior executive order denying birthright citizenship to children of undocumented immigrants and to individuals in the United States on temporary visas. Yesterday and today, the initial two legal challenges to the new order were instituted.
They were filed by the plaintiffs in two of the cases challenging the earlier orders. The plaintiffs in Barbara v. Trump are seeking either a modification of the injunction against the earlier executive order or a new injunction clarifying that they cannot be deprived of birthright citizenship under the new order. In CASA, Inc. v. Trump, the plaintiffs are seeking a lifting of the stay of proceedings and a status conference addressing the new order. I expect they, too, will eventually seek an injunction against the latter order.
Both lawsuits are class actions certifying a cohort of children who would lose citizenship under Trump’s initial birthright order (those born to parents who are undocumented immigrants or non-citizens in the US on temporary visas). Class certifications are among the tools available to bypass the Supreme Court’s problematic ban on universal injunctions established by its CASA ruling last year.
I believe nearly all of the people affected by the new order indeed fit within the classes certified in these two cases, in the sense that they are all children of non-citizens who either entered the US illegally or remain here on temporary visas of some type. The notable exceptions are children born in American Samoa (the only individuals covered by the portion of Trump’s order that applies to births “in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute”), and possibly children born to surrogate mothers who contracted with noncitizens outside the United States (this is part of the provision on “birth tourism”). The vast majority of babies born in American Samoa are, I presume, born to permanent residents of that territory. Many surrogate mothers may actually be U.S. citizens, and the sperm and egg donors (if non-citizens) may never set foot in the United States, whether legally or otherwise.
There may be a range of procedural hurdles to using these earlier cases to challenge the new executive order. Some of these procedural questions lie beyond my expertise, so I will leave them to others. Still, the plaintiffs are right to point out 1) that the new order clearly arises from the earlier one, and 2) that a substantial portion of it is unconstitutional in light of Trump v. Barbara.
I also expect that state governments will be able to challenge the new order, just as several did successfully in the lower courts with the prior one. Lawsuits brought by states represent another potential route to obtain a universal (or at least broadly applicable) injunction after Trump v. CASA, Inc. Last year, after CASA, the U.S. Court of Appeals for the Ninth Circuit granted one in a birthright citizenship challenge to the original order.
Because the new order affects far fewer people than the original, there may be more procedural obstacles to challenging it. Yet I anticipate these will eventually be overcome, and courts will likely strike it down. There will, of course, be ongoing debate about the appropriate scope of the resulting injunctions. I believe universal injunctions are often warranted. Following Trump v. CASA, Inc., there continue to be multiple avenues to obtain them (or close equivalents); but the Supreme Court has not yet issued definitive guidance on how frequently such remedies are available.
