“Class action” or “injunction”: Legal paths to block Trump’s citizenship ban

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00:00For more, we can cross to New York and speak to lawyer and former prosecutor Stephen Dreyfus.

00:03Hello to you, Stephen.

00:05National injunction.

00:06It's something that both Democratic and Republican administrations have done.

00:11Can you take us a little bit through the Supreme Court ruling?

00:16Well, what they've done is quite interesting because they did not address the question

00:24of whether the Constitution permits this action by President Trump that purports to deny

00:30American nationality to children born of parents who are not citizens and not in the country

00:39legally.

00:40It bypassed it because, of course, the government bypassed it in the appeal and only challenged

00:48the remedy, which is the nationwide injunction.

00:51That's really it because it's really quite clear.

00:55If you look at the language of the 14th Amendment to the Constitution, it says that everybody

01:00who is born in the United States is a citizen.

01:03So the government did not want to risk a situation where the Supreme Court would establish a nationwide

01:09rule striking down the executive order.

01:12So all they challenged was the fact that the court, the lower court issued a nationwide injunction

01:17against enforcement of it.

01:19And what they've held, basically, is that an injunction that's issued by a court only applies

01:26to the actual plaintiffs, the actual parties to that action, rather than beyond them to

01:33the whole country as a whole.

01:35And this is a matter that, as you point out, both Democratic and Republican administrations

01:40have struggled with for a long time.

01:42You may recall that during the Biden administration, there was a single judge in Texas who outlawed

01:49the use of an abortion drug for the whole country, even though it had been approved by the drug

01:56authorities for the United States.

01:58So it cuts both ways.

02:01But as you saw from that clip of President Trump's reaction, he intends to try to use this to prevent

02:08the courts from interfering with a whole range of policies that he has put out in executive order

02:15since he took office in January.

02:17And the question will be, what will be the judicial remedy available?

02:21And the court laid out a bit what the options could be, particularly the possibility of a class

02:28action, which is an action which is brought on behalf of a whole class of people.

02:34And theoretically, the lower court could say, I recognize a class of all mothers who are pregnant

02:44and will be giving birth in the United States who are not citizens, and decide the case on that

02:50basis.

02:50The other thing that the court left open was the possibility that states could bring an action

02:57and an obtain an adjunction against an illegal executive order that would apply in the whole

03:05state.

03:06So you could, as in this case, there were something like, I think, 22 states who were parties to

03:11this case.

03:12And the court has remanded to the lower courts the determination of what their rights are.

03:17So that potentially could create a broader enforcement of the Constitution as against the executive

03:26order of the president.

03:27And that's what I saw as well, 22.

03:29So that means in the other 28 states, this executive order to end birthright citizenship,

03:35that goes into effect?

03:36It's going to go into effect in 30 days everywhere, unless and until one of the lower courts recognizes

03:46the validity of one of the state's claims that it is illegal, in which point it will not go

03:54into effect in those states who are parties to that action.

03:57It creates a very unusual situation, as has been pointed out by the dissents in this case, because you could have

04:05someone who was born in one state who would not be a citizen if they were born in another state, rather than

04:14having a single rule for the United States.

04:17It will be extremely difficult to manage.

04:19So there is a lot here that will go down to the lower courts and then come back up to the Supreme Court.

04:26And eventually, and there's a debate about how quickly it will happen, the Supreme Court is going to have to

04:32pass on the constitutionality of this executive order.

04:35And it's pretty clear that the order is not constitutional.

04:40So the question will be procedurally, how long does it take for the Supreme Court to say so?

04:45And in the meantime, this ruling does broaden presidential powers, whether for Trump or whoever follows him.

04:51It's been a while since my constitutional law or civics classes, Stephen.

04:55But as I recall, the U.S. Constitution establishes three separate but equal branches of government.

05:02Does this challenge that balance?

05:06Well, it's interesting because the majority opinion in the court pointed out that this limits

05:15the judiciary's role to what it says is its proper role and prevents the creation of an imperial judiciary

05:24that has undue power over the executive.

05:27But it is true that ever since 1803, the very beginning of the United States,

05:33the Supreme Court has held that it is, as it put it, emphatically the province of the judicial branch

05:41to say what the law is.

05:43In this case, when they get to the merits, and they have deliberately chosen to avoid the merits

05:50in this decision yesterday, they are going to have to say whether this executive order

05:58is consistent with the 14th Amendment to the Constitution.

06:03And it very clearly is in so many words.

06:06It's the text that is absolutely clear.

06:08So eventually, the court will say what it is.

06:12But what they're basically saying is that the only court that should be allowed to establish

06:17a nationwide rule is the Supreme Court of the United States, and that a lower court should

06:23not have the power all by itself to issue an injunction that covers the whole country.

06:28More legal battles to come.

06:30Stephen, I'm guessing we'll be talking to you again soon.

06:32Thank you very much.

06:33Stephen Dreyfuss joining us from New York.

06:34There you go.

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