Justices Give Other Path to Block Trump Orders Nationwide (1)

Tucked into the Supreme Court’s decision blocking President Donald Trump from sending additional Venezuelans to a Salvadoran prison is subtle but significant language that could provide broad relief from other administration policies even if the justices limit the use of nationwide injunctions.

In ruling the alleged gang members needed more notice of their pending deportations, the justices said May 16 that the Supreme Court can temporarily block policies from applying to groups of people in potential class actions even before considering whether the class is likely to be certified.

Georgetown Law professor Steve Vladeck called that part of last week’s decision a “quiet bombshell.”

“It identifies a pathway where even a ruling that limits or eliminates nationwide injunctions might not cut off all opportunities for nationwide relief,” he said.

Same Result?

The Trump administration argues the lower court rulings against its automatic birthright citizenship restrictions should be limited to the parties that filed the litigation and that district courts shouldn’t be able to block his executive order nationwide.

During Supreme Court arguments last week, some of the justices seemed to suggest temporarily blocking Trump’s order for everyone in a proposed class action would produce the same result as a nationwide injunction.

“If putative class actions and preliminary relief are an option, what then is the practical problem you see as distinct from the current regime?” Justice Brett Kavanaugh asked Kelsi Corkran, who represented the groups and individuals challenging Trump’s birthright citizenship order. Corkran is the Supreme Court director at the Georgetown Law’s Institute for Constitutional Advocacy & Protection.

The May 16 ruling on the Venezuelan deportations signals to lower courts that they can provide limited relief beyond the parties named in a lawsuit without a nationwide injunction, said Lee Kovarsky, a University of Texas School of Law professor, who specializes in habeas corpus cases.

While temporary relief can be granted to a proposed class, the class must be certified for people other than the named representatives to get permanent relief.

And the various criteria for class certification could prove to be obstacles for relief long-term, said Ilya Somin, a George Mason University law professor who specializes in constitutional and immigration law.

In a dissenting opinion in the Venezuela case, Justice Samuel Alito disagreed with his colleagues entirely, saying the court can’t side-step class certification considerations.

It’s doubtful classwide relief can be obtained through habeas proceedings, Alito wrote. Even if it can, the court “must at least consider whether class certification is likely,” before issuing preliminary injunctive relief, he said.

Only Justice Clarence Thomas joined him in that dissent. Legal scholars see it as a good sign for litigants trying to stop Trump policies like the birthright citizenship restrictions, which a federal court judge in Seattle called “blatantly unconstitutional,” while their challenges play out in court.

“After they had two-and-a-half hours of argument Thursday about whether federal courts can grant relief to nonparties, they granted relief to nonparties,” Vladeck said. “And, especially given Alito’s dissent, it’s hard to view that as an accident.”

Ruling Invoked

A federal district court judge already cited the language in the Supreme Court’s May 16 ruling to temporarily certify a class of alleged Venezuelan gang members being detained in the Central District of California and temporarily block the Trump administration from deporting them.

Judge John Holcomb of the US District Court for the Central District of California said in a ruling Monday that the Supreme Court reversed the denial of a similar proposed class and enjoined the government from removing its members while litigation plays over what notice they’re entitled to.

“In doing so, the Supreme Court appeared to conclude that, although it may be inappropriate to certify a class of detainees insofar as the class sought to challenge their removability on a classwide basis, it was appropriate to certify, on an emergency basis, a class that sought ‘to vindicate notice rights on a classwide basis,’” he said.

Holcomb’s order stops the Trump administration from removing this group of Venezuelans from the Central District of California while it decides what amount of notice they’re due prior to their removal.