Class Actions Might Be The Surprise Fix For Problems With Universal Injunctions
What some might dismiss as ‘technicalities,’ others might call ‘the rule of law.’
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A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.
The U.S. Supreme Court heard oral arguments on May 15 in cases challenging Donald Trump’s executive order restricting birthright citizenship. Lower courts have issued nationwide or universal injunctions preventing the order from taking effect, which the Trump administration argues these courts lack the power to do.
I expected the arguments to cover universal injunctions and birthright citizenship, and they did. I did not expect extensive discussion of class actions under Federal Rule of Civil Procedure 23—which wound up being, according to Adam Feldman of Legalytics, one of the top three topics raised at the arguments. Or as Stanford law professor Mila Sohoni put it, in an excellent analysis at Divided Argument, “The breakout star of the oral argument was the Rule 23(b)(2) injunctive class action.”
I was not alone in being surprised by how prominently class actions figured in the arguments. Also caught off guard was Vanderbilt law professor Brian Fitzpatrick, a leading expert on class actions and author of the book The Conservative Case for Class Actions, whom I interviewed earlier this week.
“I was surprised by how much class actions were mentioned,” Fitzpatrick told me. “I realize they are a possible alternative to nationwide injunctions, but I didn’t realize how strong the interest was in them. It seemed that the government had put all their eggs in that basket—or that the justices saw class actions as the only viable alternative.”
Solicitor General John Sauer leaned hard on class actions in his argument. When Justice Elena Kagan asked what can be done about an illegal executive order, Sauer said that “Article III [of the Constitution] and the courts’ traditional equitable practices provide a range of tools to address that, including a potentially nationwide class action”—but that “a universal injunction is not one of those tools.”
Why might class actions be helpful to the Trump administration? Fitzpatrick explained that criticisms of nationwide injunctions fall into two buckets: formalist or technical concerns, and functional or practical ones. Class actions address both—at least in part.
On the formalist side, the government argues that it’s unconstitutional to award relief like an injunction to an individual who’s not a party to the case. Class actions address this by using the class certification process to make these individuals—i.e., individuals other than the named plaintiff in a class action—into formal or official parties.
On the functional side, there are a number of problems with universal injunctions. They encourage forum- and judge-shopping: plaintiffs challenging a nationwide policy get to pick where they file their case. They prevent percolation of legal issues through the lower courts: once a judge blocks some government action with a universal injunction, the action ceases, and other courts don’t get to rule on it.
And they’re unfair to the government—which can win the vast majority of lawsuits challenging a policy, but if one judge finds that policy unlawful, it gets frozen nationwide. As Sauer stated in the opening of his argument, universal injunctions “operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere.” If the government wins a challenge to a policy in one court, that ruling doesn’t stop plaintiffs from filing lawsuits in other courts. But if the government loses and gets hit with a nationwide injunction, it can’t implement that policy anywhere, full stop.
The class-action mechanism is less effective in addressing these practical problems, according to Fitzpatrick. Because class members are bound by an adverse ruling, the class action does fix the problem of unfairness to the government because of a lack of reciprocity. But it doesn’t address the problem of forum- and judge-shopping, since lawyers challenging a national policy can pick where to file their class action, and it also doesn’t allow for percolation, since granting relief to a nationwide class blocks that policy across the country.
In other words, there’s not much of a practical difference between a nationwide class action, on the one hand, and a universal injunction, on the other. As an example, Fitzpatrick cited a class action challenging the Trump administration’s policy allowing migrants to be deported to places other than their country of origin, so-called “third countries,” without giving them an adequate opportunity to object.
The lawsuit was brought by a coalition of immigrant-rights organizations, who (shrewdly) filed in the U.S. District Court for the District of Massachusetts—where Democratic appointees outnumber Republicans by 11-2, among active judges. The case wound up before Judge Brian Murphy, a Biden appointee.
Five days after the complaint was filed, Judge Murphy issued a temporary restraining order blocking the policy across the country. A few weeks later, and less than a month after the lawsuit was initiated, he certified a nationwide class and partially granted a preliminary injunction. (Yesterday, Judge Murphy ordered the administration to “maintain custody” of certain migrants who may have been deported to South Sudan, in possible violation of the injunction.)
One might argue that at least class actions require plaintiffs (and their lawyers) to satisfy Rule 23’s requirements for certifying a class, including what Sauer referred to as “the rigors of the certification process.” But an opinion the Supreme Court issued the day after the birthright-citizenship arguments calls even this argument into question.
In A.A.R.P. v. Trump, the justices extended their earlier order preventing the Trump administration from deporting alleged Venezuelan gang members under the Alien Enemies Act (AEA). The Supreme Court provided relief to a “putative” class, i.e., a class asserted to exist by the plaintiffs but not yet certified by the district court.
In fact, as Justice Samuel Alito complained in his dissent, “the Court issue[d] ‘preliminary relief’ to a putative class that the District Court has explicitly refused to certify,” and “without providing any substantive analysis suggesting that the District Court’s analysis of the class certification issue was incorrect.” In Alito’s view, even assuming a court can grant relief to a putative class, it “must at least consider whether class certification is likely” before doing so.
According to Georgetown law professor Steve Vladeck, “the majority’s holding that plaintiff classes can be provisionally certified by district courts for purposes of providing temporary relief, even without resolving the likelihood of full class certification, is going to have an impact in lots of cases—well beyond the AEA.” In a post at One First, he characterized the court’s conclusion as a “quiet bombshell.”
Or, as Fitzpatrick told me, if a court can provide class-wide, injunctive relief to a “putative” class, without certifying the class or even determining that class certification is likely, “that’s giving away the whole ballgame—it’s functionally equivalent to a universal injunction.”
In Fitzpatrick’s view, the better practice is for a court to reach at least a preliminary conclusion on the likelihood of class certification before issuing temporary relief to a putative class. But he said he understands the appeal of providing immediate relief to a putative class, given how swiftly the Trump administration moves.
In A.A.R.P., for example, the plaintiffs alleged that the government planned to deport some migrants with only 24 hours’ notice. And as the Court pointedly noted—citing the case of Kilmar Armando Abrego Garcia, the Maryland man sent to an El Salvadoran prison—“the Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador.”
So even if a court takes only a few days to make preliminary findings about the likelihood of class certification, it might be too late for the class members. As Fitzpatrick said, “Today we arguably have more need than ever to give relief to a putative class—because we have no assurance that the president isn’t going to put all these people on a plane to El Salvador, making the entire litigation moot.”
If the Court overreached in granting relief to a putative instead of certified class, we could be looking at a situation where “the Court has acted wrongly in enjoining action that is probably, or even certainly, illegal,” lawyer and legal commentator Ed Whelan wrote at National Review. He added, “Another reason to condemn [the Trump administration’s] unconstitutional actions is that they predictably generate bad law that expands judicial power.”
In other words, Trump critics might argue—paraphrasing the old saying, “Hard cases make bad law”—”bad administrations make bad law.”
Returning to the birthright-citizenship oral arguments, certain comments by the justices resonate quite differently in light of the A.A.R.P. ruling that came out the next day. Justices Neil Gorsuch and Brett Kavanaugh asked multiple questions about giving preliminary relief to putative classes—presumably because they knew the Court was about to do just that in A.A.R.P., even if the advocates in the birthright-citizenship cases did not.
Explaining the appeal of the class-action mechanism over the universal injunction, Justice Kavanaugh said that at least the class action “complies with the rules.” And while jumping through the hoops of Rule 23 class certification “may all be a technicality” to some, he added, in the legal realm, “we care about technicalities.”
Well said, Justice Kavanaugh. What some might dismiss as “technicalities,” others might call “the rule of law.”
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The fact that a Supreme Court Justice asks about something off the wall at an oral argument — and the suggestion that Rule 23 could solve the problems with nationwide injunctions is off the wall, out of the handball court, and over the fence into the weedy parking lot next door where the winos hang out — just goes to show their humanity, which is to say, capacity to occasionally look and sound stupid no matter how smart they really are.
I first learned about class actions from Harvard's Mark Tushnet when he taught a 1L Federal Civil Procedure course while visiting at Texas Law in 1977. Tushnet, a self-avowed Marxist, was enough of a social justice warrior to wish that class actions could solve all our problems, but honest and realistic enough to recognize that they never, ever would — and that indeed, even by 1977 it was obvious that their uses were extremely limited and mostly speculative in the real world.
My practice experience in the intervening four decades has shown me that his cautions were well given. As a wealth transfer technique, from corporate America to class-action lawyers on both sides, they're extremely useful. But I'm pretty much aligned with Walter Olson, notorious and in my opinion heroic gadfly opposing class certifications and settlements.
"Hey, I know! Let's crowd-source all these issues, and let everyone who wants a say intervene, oppose class certification or demand revisions thereto, or opt out!" Sounds good; won't work. Imagine the arguments over whether or not the named class representative's purported gang tattoos make him or her an appropriate class representative. Should facial tattoos require a separate subclass? And if there's no underlying commerce to suck the blood, or money, out of to pay all the lawyers, the incentive structures won't work either: corporate counsel who advise their clients to pay off the class action plaintiffs' bar aren't similarly situated (heh) to government lawyers deciding whether to oppose a civil rights fee which would instead be paid from the public fisc.
We need more actual civil trial lawyers on the SCOTUS bench. Even one would be nice. I'm pretty sure that not a single sitting Justice has ever actually filed or defended against a class action, and they quite literally know not of what they speak.
The fundamental problem in this and other cases is that the courts, including SCOTUS, are struggling to find ways to do justice and enforce the law against an administration that has no respect for the rule of law, regularly operates in bad faith, and does not hesitate to distort judicial decisions or do whatever else it can to impede judicial review or escape it altogether. Exacerbating the situation, the federal judiciary is in the uncomfortable and extremely challenging position of being the lone check on Trump's excesses since there clearly are no guardrails within the executive branch (only enablers) and Congress is totally MIA.