Think Immigration: The Fourteenth Amendment Survives in 22 States: Trump v. CASA, Inc. Call to Action!

Surprise! The Supreme Court’s decision in Trump v. CASA, Inc. did not end birthright citizenship in the U.S. The decision merely trimmed the existing injunction in that lawsuit, so it now protects only the families, organizations, and the 22 states that filed or joined in that lawsuit. In response, just hours later, the ACLU quickly filed a new complaint challenging the Trump Administration’s executive order restricting birthright citizenship, this time as a nationwide class action. Not only did the filing confirm that the fight was far from over, it showed that litigators must always stand ready to pivot in the face of apparent adversity. In this way, the ACLU was sending a clear message: zealous advocacy remains a vital tool in the litigation toolbox.

In addition to the new ACLU litigation, the original cases are also moving ahead. North Carolina Attorney General Jeff Jackson said it best – “Because we took action to defend the Constitution, North Carolinians still have their Fourteenth Amendment right to full citizenship.” AG Jackson and North Carolina were one of twenty-two (22) states that sued the Trump Administration, and, as a result, individuals born in those 22 states are still considered U.S. citizens, regardless of President Trump’s desire to strip them of their personhood and Constitutional rights. What does this mean for individuals born in the U.S. to non-citizen parents? What does it mean for U.S. immigration lawyers? It is a call to action. While the majority opinion in Trump v. CASA, Inc. curtails “nationwide” or “universal” injunctions, it does not end due process in the United States. Attorneys will wake up every day, log onto their computers, and continue suing the U.S. government to protect their clients’ rights. This is a call for zealous advocacy, innovation, and for collaboration among the immigration bar.

Associate Justice Amy Comey Barrett wrote the decision for the 6-3 majority in CASA, which held that U.S. district court judges lack authority to issue universal injunctions. Injunctions issued by federal judges will now be limited to the parties in each lawsuit – i.e. the individuals or organizations or states that bring each lawsuit. BUT – Justice Barrett’s 26-page opinion leaves a fair amount of “wiggle room” for lawyers to operate in.

Three Specific Workarounds

The first opportunity is with class-action lawsuits. When relief was previously sought through a motion for a universal preliminary or permanent injunction, now the key is to seek class certification and relief for members of that putative class. Second, the role of state Attorneys General has now risen in importance. State-led lawsuits may now be the best vehicle for obtaining broad judicial rulings blocking unconstitutional actions or policies from the Trump Administration. In some ways, the states will find themselves having to address a different part of the Constitution as well. The Full Faith and Credit Clause of the Constitution requires states to respect public acts, records, and judicial proceedings of every other state. Thus, if one state were to issue a birth certificate to a child born to noncitizens within its boundaries, only to have another state not recognize that birth certificate, it is easy to see how chaos and uncertainty will ensue. While in the birthright citizenship aspect, it is easy to see how disparate treatment will lead to confusion; the issues impacted are potentially widespread. State-led litigation will likely increase to meet these challenging matters. The third opportunity is the bringing of lawsuits under the Administrative Procedure Act (APA), which still authorizes U.S. district court judges to strike down actions of executive branch agencies. Justice Barrett’s majority opinion explicitly declined to make them unavailable to federal court litigants, much to Associate Justice Samuel Alito’s chagrin (and giving him much grist for his concurring opinion in CASA). If and when this Administration issues rules for implementing the Executive Order, expect to see APA “set aside” proceedings.

The Class-Action Option

After the CASA decision was released, one of the main litigants in the birthright citizenship lawsuits, CASA Inc., quickly filed a request for an emergency block on the Trump Administration’s birthright citizenship Executive Order, and asked U.S. District Court for Maryland Judge Deborah L. Boardman for a “class-wide temporary restraining order.” As the CASA decision to pivot to a class-action shows, the opportunity to help thousands or even millions of individuals still exists. Class-actions operate to allow large groups of similarly situated individuals to bring their claims together in one lawsuit to seek common redress to common problems. Class-action lawsuits allow U.S. district court judges to issue binding orders that protect all class members from a challenged federal law or policy.

Power to the States

Attorney General Jackson’s comments ring true here. Because his office joined 21 other states in challenging the Trump Administration’s Executive Order on birthright citizenship, all individuals in North Carolina have protection under the Fourteenth Amendment. For individuals in the other 28 states, they have fewer Constitutional protections. Justice Barrett’s majority opinion recognizes that the states may sometimes be entitled to broader injunctions than individuals as plaintiffs. When states sue the U.S. federal government, U.S. district judges may be able to grant “complete relief” by way of a sweeping judicial remedy. States also have an advantage over classes of people that must meet the requirements of “numerosity,” “commonality” and “typicality.” The states automatically represent the citizens and inhabitants of their jurisdiction.

The Solicitor General for New Jersey, Jeremy Feigenbaum, raised at oral argument before the Supreme Court the odd, but now likely, scenario where Constitutional rights depend on your physical location in the U.S. Someone born to non-citizens in one state would enjoy automatic birthright citizenship, while someone born in another state would not be considered a U.S. citizen. This will likely result in “birth tourism” to Democratic-led states. Solicitor Feigenbaum argued that the states do not have the opportunity to use class-action lawsuits, so their unique standing to represent their inhabitants needs to be preserved. Justice Barrett appeared to be sympathetic to the states’ position at oral argument, and her majority opinion did preserve this avenue for wide relief.

The Administrative Procedure Act – Born in 1946 and Still Kicking

The Administrative Procedure Act was enacted on June 11, 1946, and it was given even more importance in last year’s landmark decision in Loper Bright v. Raimondo, 603 U.S. 369 (2024), which abolished the “Chevron Doctrine” of U.S. district courts giving great deference to federal agencies. While the APA has been the law governing federal agency actions for almost 80 years, it has never been more important than now. The APA authorizes U.S. district courts to set aside federal agency actions that the courts find to be arbitrary and not based on a reasoned analysis. Chief Justice John Roberts, in his majority opinion in Loper Bright, emphasized that the APA “requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority…” While a decision under the APA that finds a federal agency action to be illegal can have the same effect as a universal or nationwide injunction, Justice Barrett left open that question in a footnote in CASA. While the Trump Administration’s birthright executive order cannot be challenged under the APA, any federal agency policy or action undertaken to implement the executive order can be challenged under the APA.

Key Take-Aways

We now have a 30-day runway to bulk-up the existing challenges before the Trump Administration begins to enforce the birthright citizenship executive order. Civil-rights groups, state attorneys general, and immigration attorneys need to add plaintiffs to existing lawsuits and bring new lawsuits seeking class certification and class-wide injunctions. State attorneys general need to seek state-wide blocks on enforcement of the birthright citizenship executive order. And the CASA decision also “cuts both ways,” eliminating the one-size-fits-all avenue that existed for Republican attorneys general in Judge Drew B. Tipton’s courthouse in Houston, Texas and especially Judge Matthew J. Kacsmaryk’s courthouse in Amarillo, Texas. In 2015, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas issued a universal injunction halting President Barak Obama’s Deferred Action for Parents of Americans (DAPA). In 2022, Judge Tipton likewise used a universal injunction to halt a 100-day deportation pause. The anti-immigration litigation playbook just got a lot harder to run.

One Million Lawsuits

What does the end of universal or nationwide injunctions mean to the average person and the local town litigator? It means a tidal wave of individual lawsuits that U.S. district court judges and U.S. Department of Justice attorneys will need to deal with daily. Each individual lawsuit will now need to seek a temporary restraining order to protect each plaintiff’s Constitutional rights, which would have been protected by one universal or nationwide injunction. The federal courts will now be faced with millions of lawsuits, along with a multitude of class-action lawsuits, all challenging the Trump Administration’s birthright and other unconstitutional policies and actions.

Daunting as it may seem, litigators must remain vigilant in their pursuit of justice, and their defense of the rule of law by arming themselves with new skills. Attorneys have an opportunity to improve their practice. Despite the challenges that now seem insurmountable without the possibility of nationwide injunctions, lawyers must meet the moment and shift their strategies.