Supreme Court Walks Right Into Instant Checkmate
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Well, breaking news that Donald Trump and the United States Supreme Court think the public interest groups and law firms defending birthright citizenship weren't going to be at the ready to file a new motion for class certification, a new motion for temporary restraining order to protect birthright citizenship in the wake of just several hours ago, the Supreme Court ruling this morning. Not that birthright citizenship can be changed by executive order. Not yet.

But that no judge, despite 100 years of precedent, has the power to enforce or to impose a nationwide or universal injunction to oppose a universally unconstitutional decision by Donald Trump that affects every baby born, regardless of state. It doesn't matter to the United States Supreme Court. They said you can't do it that way. The best you could do would be do it by class action.

That's what Kavanaugh said in his dissent or his concurrence. You'll have to do it by class action, which will be the equivalent of an injunction. And so to my or said, get on your horses, file that class action and ask for a temporary restraining order. And just less than about 90 minutes later.

Right on cue in front of Judge Boardman in Maryland, the lawyers for that case filed what? A motion for class certification and for temporary restraining order. I'll unpack it. I'll break it down. The only way I know how without blowing smoke or sunshine here on the Midas Touch Network and Legal AF. This is a very quick, fast moving story. I just did a hot take up on the network about what happened.

And as we anticipated, because Sotomayor is so smart. We knew that already. But once again, Sotomayor says, in effect...

Here's what she said in her dissent, which exactly matches what just got filed. Those papers were already prepared. I just did another interview with Leah Littman of Strict Scrutiny up on Legal AF. And we half joked off talking about the Supreme Court decision that I said, Leah, the papers are already drafted, aren't they? She said, yes. And then like an hour later, they got filed. Here's what Sotomayor, here's her guidance. Here's her little Easter egg in her dissent.

Nevertheless, the parents of children covered by the citizenship order would be well advised to file promptly class action suits and to request temporary injunctive relief for the putative class pending class certification. That is exactly to a T what they just did. In fact, when they filed it, they did a little roasting of Kavanaugh because in their paper and their motion for class wide certification and their motion for.

Here's what they said on page two of their motion for class-wide certification.

Justice Kavanaugh's concurring opinion confirms that district courts may, quote, grant or deny the functional equivalent of a universal injunction, for example, by granting or denying a preliminary injunction to a putative national class under Rule 23B2. And Justice Sotomayor's dissenting opinion notes that the majority leaves untouched one important tool to provide broad relief to individuals subject to lawless government conduct, Rule 23B2 class certification for injunctive relief.

Thus, the parents of children covered by the citizenship order are well advised to follow my lead, Justice Sotomayor said.

And that's what they've done. Let me break it down for you. That's a lot of words. Let's do a legal AF talk right now about class certification. It usually comes up in other contexts, usually products, liability cases where people are injured, you know, other types of things where there's an injured class that's very numerous with typical, typical type claims.

You know, they have numerosity, we call it. They have typicality, we call it. And therefore, they go to federal court not as an individual action, not as an individual lawsuit, but as a putative class action representing a group of people similarly situated. We call that collective action. And collective or class action is governed by a rule of civil procedure. It allows a judge to handle individuals.

allegations of it could be breach of contract, it could be fraud, it could be constitutional abuse by a president all in one courtroom with one or two or three class plaintiff representatives.

And a class certified and then grant relief. That's exactly what we just saw with Judge Boesberg, who saw the writing on the wall with the oral arguments about this case before the decision came down. And he certified a class of 250 people, all similarly situated, sent to El Salvador in the middle of the night without due process or habeas corpus rights.

And then he certified the class, set up a bond, because sometimes you have to put a bond up for this or a surety of a dollar, and then issued a class-wide injunction, which, as we just saw from Justice Kavanaugh and his concurrence, is the equivalent of a nationwide injunction. So you get there eventually.

It's just that the ruling, the Supreme Court is reserving for themselves the sole power to declare nationwide a policy procedure or law unconstitutional. They don't want the lower federal courts to do it, obviously, but they want to get the issue up to them. And then we're going to have to rely on appellate stays and blocks and Supreme Court stays and blocks in order to make sure that like babies born in red states like right now aren't going to be declared non-citizens and cut off from federal funding forever.

and other benefits that they get for being citizens and aren't travel. How about if they want to travel out of the country? You know, I my my baby got a baby passport in the first three months because we were planning on travel. So they're they're nationless people. And what country they're born here. Answer me. Riddle me this. What country are they a part of? What who's going to issue them a passport?

Their parents are from Mexico, so Mexico is going to issue them a passport. They're born in a hospital in Massachusetts and Washington and Maryland. So right on cue, there's three cases that were the subject of the Supreme Court decision from this morning, literally from Friday morning. Rhode Island, Maryland, Washington state.

All three nationwide injunctions now have been pared back to, at best, an injunction about the three plaintiffs or four plaintiffs that are in front of them or for that particular state. What about the other 47 states? What about the rest of the people?

Well, now we got to go through the class action methodology. Got to file a class action. It's got to be certified. It's going to be opposed by the Trump administration. Then we're going to be off and running on an appeal once somebody like Judge Boardman, who is going to certify this class in Maryland. They've also asked her at the same time for a temporary restraining order.

to stop the enforcement of the executive order to rip away the birthright citizenship until she's got briefing and a chance to rule. She's already said that that executive order is unconstitutional. The question now is about what kind of remedy she can fashion.

and the Supreme Court having now taken one major tool out of her toolbox, the tool of nationwide injunctions. So now she's got a rummage around her toolbox looking for something else. I got it, class actions certification and an injunction around that. That's where we are at now. So kudos to the lawyers representing the plaintiffs in these cases and for them filing so quickly and having at the ready their various motions.

So they've got the motion for class wide temporary restraining order. They're asking for that to be done immediately. You can see me back up here tomorrow talking about whether the judge did or did not enter the temporary restraining order temporarily. At the same time, they're asking the judge to quickly certify the class in join so that we can have here's here's the order of operation. She will certify that class.

She'll allow briefing, very short track. She'll hold oral argument. Next several days, she certifies the class, along with a temporary restraining order. Now the party on the losing end of that, either preliminary injunction or temporary restraining order, takes an appeal to the Fourth Circuit Court of Appeals for Maryland. I think that's a good place to start, by the way. Fourth Circuit has some amazing judges, most of them moderate.

Let's say they rule against the Trump administration on now the merits of the case. See, the Supreme Court wasn't dealing with the merits of birthright citizenship. And now the merits of the case are up for grabs. Can Donald Trump, by executive order, rip out the beating heart of birthright citizenship? Yes or no from the Constitution and the 14th Amendment that came out of our Civil War reconstruction period.

So now that goes to the Fourth Circuit Court of Appeals. The loser takes it on an emergency application to the United States Supreme Court over the summer. I don't think they're going to do it by an emergency application process where they just have two briefs, no oral argument. I think they have additional briefing. I think they set it for oral argument. And then they get around over the summer to hearing the case. They could roll it to the next term, starts the first Monday in October.

That leaves a lot of babies in limbo. This is all about the babies. What about the babies right now? That's the irreparable harm that's being alleged in these new filings. So we'll continue to file. But I wanted to give a tip of the hat to the organization here. There's three separate ones.

But the organization here that has moved so quickly and so great in response to Kagan and Sotomayor to write all these things, that would be the Asylum Seeker Advocacy Project and the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. Well, they're in Washington anyway.

So there you go. So until my next report on Midas Touch Network or on Legal AF, take a moment, hit the subscribe button on Legal AF. I will post these filings on Legal AF Substack under Filings AF and the original opinion from the United States Supreme Court under SCOTUS AF. Until my next report, I'm Michael Pope.

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