By Nate Raymond
CONCORD, New Hampshire (Reuters) -A federal judge will consider on Thursday whether to prevent President Donald Trump’s administration from enforcing his executive order limiting birthright citizenship after the U.S. Supreme Court restricted the ability of judges to block his policies using nationwide injunctions.
American Civil Liberties Union lawyers are set to ask U.S. District Judge Joseph Laplante at a hearing in Concord, New Hampshire, to grant class action status to a lawsuit they filed seeking to represent any babies whose citizenship status would be threatened by implementation of Trump’s directive.
Granting class status would empower Laplante, if he is inclined to do so, to issue a fresh judicial order blocking implementation of the Republican president’s policy nationally.
The ACLU and others filed the suit just hours after the Supreme Court on June 27 issued a 6-3 ruling, powered by its conservative majority, that narrowed three nationwide injunctions issued by judges in separate challenges to Trump’s directive. The suit was filed on behalf of non-U.S. citizens living in the United States whose babies might be affected.
Under the Supreme Court’s decision, Trump’s executive order would take effect on July 27.
Looking to seize upon an exception in the Supreme Court’s ruling, the lawyers for the plaintiffs argued that the decision allows judges to continue to block Trump policies on a nationwide basis in class action lawsuits.
The three judges who issued nationwide injunctions found that Trump’s directive likely violates citizenship language in the U.S. Constitution’s 14th Amendment. The amendment states that all “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
The Justice Department has argued that Trump’s order conforms with the Constitution and has asked Laplante to find that the plaintiffs cannot sue as a class.
The Supreme Court’s ruling did not address the legal merits of Trump’s order, which the Republican president issued as part of his hardline immigration agenda on his first day back in office in January.
Trump’s order directs federal agencies to refuse to recognize the citizenship of U.S.-born children who do not have at least one parent who is an American citizen or lawful permanent resident, also known as a “green card” holder.
More than 150,000 newborns would be denied citizenship annually if it takes effect nationally, according to Democratic-led states and immigrant rights advocates who have challenged it.
The justices ordered lower courts to reconsider the scope of the three injunctions that had blocked Trump’s order from being enforced anywhere in the country against anyone after finding judges lack the authority to issue so-called “universal injunctions” that cover people who are not parties to the lawsuit before the judge.
Although the Trump administration hailed the ruling as a major victory, federal judges have continued to issue sweeping rulings blocking key parts of Trump’s agenda found to be unlawful.
Conservative Justice Amy Coney Barrett, who wrote the decision for the court, made clear that it did not prevent plaintiffs from obtaining essentially the same type of relief as provided in a nationwide injunction by instead bringing class action lawsuits that seek to represent all similarly situated people, among other exceptions.
Immigrant rights advocates launched two proposed class actions that same day, including the one before Laplante, who in a related case also concluded in February that Trump’s order was likely unconstitutional.
Laplante, an appointee of Republican President George W. Bush, ruled that Trump’s order contradicted the 14th Amendment and a 1898 Supreme Court ruling interpreting it. In that case, United States v. Wong Kim Ark, the Supreme Court interpreted that amendment as recognizing the right to birthright citizenship regardless of the immigration status of a baby’s parents.
Laplante agreed at the time that an injunction was warranted, saying that “the denial of citizenship to the plaintiffs’ members’ children would render the children either undocumented noncitizens or stateless entirely.”
But Laplante limited the scope of his order to members of the three immigrant rights nonprofit organizations who pursued the case before him.
ACLU lawyers are now urging Laplante to go further by certifying a nationwide class of babies and their parents who would be affected by Trump’s order, saying that absent a court order thousands of families nationally would be unprotected.
Trump’s administration counters that the three noncitizens parents and expectant parents seeking to serve as lead plaintiffs have immigration statuses that are too different to be able to pursue a single class action together and that an injunction at this time would “short circuit” the usual lengthier process required for them to obtain relief.
(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi and Will Dunham)
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