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With birthright case, class actions emerging as important tool against reckless Trump actions

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With birthright case, class actions emerging as important tool against reckless Trump actions

Jul 13, 2025

By GARY KLEIN

At the close of its spring term, the Supreme Court dealt a serious blow to the power of all Americans to protect themselves from illegal government actions. In Trump v. CASA, Inc., the court held that individuals, organizations, and even state governments cannot obtain “universal” injunctions from a federal court that are binding across the country.

Preservation of the rule of law for all Americans now requires that we turn to other strategies to hold the Trump administration accountable. Expanded use of class actions against the federal government appears to be among the best remaining options to secure our rights and prevent government overreach.

The practice of obtaining universal injunctions, often referred to as “nationwide” injunctions, had become a favored tactic of aggrieved individuals and organizations seeking to protect against overreaching government action. The tactic had been used against the government by partisans of all stripes, often on ideological grounds. It was employed, with frustrating success, during recent Democratic administrations by Republicans (who filed many cases in Texas or Florida). More recently, the tables have been turned by Democrats (filing in jurisdictions like California, Washington, or Massachusetts).

The case in which the Supreme Court finally chose to limit federal court authority to issue universal injunctions is about the crucially important right to birthright citizenship – a straightforward case of constitutional interpretation that, even if the constitutional language was not clear, has been settled by Supreme Court precedent for more than 100 years.

In the context of birthright citizenship, only a nationwide injunction makes sense because, most obviously, someone cannot rationally be declared a United States citizen in Massachusetts without being afforded the same rights of citizenship when across the border in New Hampshire.

So where does the Supreme Court’s ruling leave birthright citizens? Does each person who was born in the United States need to file a separate case to have the government’s executive order on birthright citizenship deemed illegal and/or inapplicable to them? Probably not.

As the Supreme Court majority opinion suggests, the question of the constitutionality of birthright citizenship can be decided for all birthright citizens in the context of a class action. Indeed, last week the plaintiffs in another case seeking protections for birthright citizens, Barbara, et al. v. Donald Trump, et al, filed in New Hampshire, obtained class certification and a nationwide injunction for class members.

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This is not a surprise. The question of the legality of Trump’s birthright citizenship executive order presents a classic case for class action treatment. It provides a single overriding common question based on a straightforward legal issue (and a longstanding Supreme Court precedent). That common question leads directly to the uniform conclusion that the executive order is unconstitutional with respect to every affected individual across the nation.

After the class in New Hampshire was quickly certified, the rule governing class actions permitted those appointed to represent the class to apply immediately for an injunction on behalf of the entire group of affected individuals. That injunction looks virtually the same as the ones the Supreme Court just struck down.

The question then is how broadly the class action process could be used to address other issues in which the government has taken illegal action against large groups of Americans across state lines.

Could it be used, for example, to address wholesale visa revocations that have occurred without compliance with immigration regulations? Lawyers in New Hampshire are trying. They are seeking class action status to represent many international students whose visas to study in the US are at risk because of the Trump administration’s blanket revocations.

Would class action status be granted to federal employees across the country who were illegally terminated from their jobs by DOGE? It might, if they have a common claim that their termination was illegal under a specific law or regulation, including civil service regulations. Similarly, class action status and injunctive relief might be granted to community-based non-profits that have had their funding terminated in the middle of a lawfully awarded grant.

One irony of the Supreme Court’s promotion of class actions as an alternative to universal injunctions is that the court has spent the last two decades limiting class actions in a variety of ways. It is much harder now than at any time since class action practice became embedded in American jurisprudence to get class treatment for a group with an interest in a common outcome.

However, there is a specific provision in the class action rule (Rule 23(b)(2)) that still provides a pathway to injunctive relief. Courts that might have issued a nationwide injunction before the Supreme Court’s recent ruling might well be open instead to considering use of class procedures to achieve effectively the same result.

There is no doubt that fighting illegal government action became harder after the CASA decision. But the Supreme Court has spoken, and the opportunity to pursue class actions is the lifeline they chose to throw us.

ABOUT THE AUTHOR

Gary Klein is a public interest and class action lawyer based in Boston, who teaches a course on class actions at Boston University School of Law. He was an assistant attorney general under then-Attorney General Maura Healey.

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