Making the 14th Amendment law again (for now)

The Supreme Court’s recent holding that [Republican] presidents are allowed to have some constitutional nullification as a treat suggested one remaining workaround for the arbitrary new ban on nationwide injunctions: the possibility of class actions. A District Court judge in New Hampshire has taken this invitation:

A federal judge in New Hampshire granted class-action status Thursday to a lawsuit seeking to protect babies who would be denied birthright citizenship by the Trump administration and granted a temporary block of the president’s order restricting birthright citizenship from going into effect throughout the country.

The suit was brought on behalf of a pregnant immigrant, immigrant parents and their infants and had sought class-action status for all babies and their parents around the country who would be affected by the executive order.

Cody Wofsy, the plaintiffs’ lead attorney with the American Civil Liberties Union, argued for class-action status in front of U.S. District Judge Joseph Laplante on Thursday morning, saying that the plaintiffs would suffer irreparable harm by being denied birthright citizenship, a claim the judge found credible.

Laplante ordered that class-action status be certified in the case but only for the babies who would be affected by the restrictions, not for the parents.

This order, it stands, would address the worst aspect of the potential results of the Court determining that American federal courts are limited in these cases to the powers of “impotent English tribunals” — the creation of stateless orphans, a particularly severe human rights violation. Alas, I would expect John Roberts’s shadow docket to quickly offer Trump another get-out-of-law-free card in relatively short order.

Incidentally, Laplante is another one of the known Trotskyists put on the federal judiciary by George W. Bush. Trump is largely a symptom rather than a cause of the current state of the Republican Party, but not entirely — birthright citizenship becoming a source of legal controversy really is a Trump-driven thing.