SCOTT SIMON, HOST:
Another week and another legal challenge to President Trump's domestic agenda. A federal judge in New Hampshire issued a ruling Thursday that temporarily blocked the president's executive order that attempts to end birthright citizenship. The judge said he will allow a class action lawsuit that includes all the children that would be affected by the order to proceed. A White House spokesman accused the judge of abusing class action procedures with the ruling, and the administration has seven days to appeal. Brian T. Fitzpatrick is a professor of law at Vanderbilt University. He wrote the book "The Conservative Case For Class Actions" and also clerked for former Justice Antonin Scalia on the U.S. Supreme Court. Professor Fitzpatrick, thanks so much for being with us.
BRIAN T FITZPATRICK: My pleasure. Thank you for having me.
SIMON: How do we read the significance of using a class action lawsuit in this week's case?
FITZPATRICK: Well, I think these class action lawsuits are going to be very effective mechanisms to hold the Trump administration accountable. I think they're going to allow litigants and lower court judges to replicate what they had been doing before the Supreme Court told them they couldn't use these so-called universal or nationwide injunctions.
SIMON: Now, traditionally, class action lawsuits are used - well, we think of the famous cases involving tobacco, for instance.
FITZPATRICK: Yes, they're used a lot of times against companies, sometimes to get money damages. But probably the original office of the class action was actually to hold the government accountable. Brown v. Board of Education was a class action. And so that's the traditional use, is to seek injunctions against government officials. So this is right within the traditional use of the class action. What's a little untraditional is certifying the case so quickly as a class action. Usually, that takes months, sometimes even years, but the judge did it very fast here, and that is one thing I think the Trump administration is going to challenge on appeal.
SIMON: That it was done precipitously? What would the challenge be?
FITZPATRICK: Within days. Yeah, you know, normally, there's a list of criteria you have to go through before you can certify a case as a class action. And the judge went through those criteria. But usually, the defendant is given a chance to conduct discovery into the plaintiffs who are the class representatives to make sure that they will be adequate representatives of the class, depositions and what have you. That was not allowed here. The judge just went full steam ahead.
SIMON: And what made the difference, do you think?
FITZPATRICK: I think the judge thinks this order - this executive order on birthright citizenship - is clearly unconstitutional. And I think the judge was worried the Trump administration would try to deport people immediately, and so the judge wanted to react just as quickly as he feared the Trump administration would.
SIMON: Now, didn't Justice Amy Coney Barrett leave open the possibility of class action litigation in these types of cases just recently?
FITZPATRICK: She did. When the court told the lower courts they couldn't use the universal or nationwide injunctions anymore, they said, you should be using class actions instead. And in fact, the Trump administration argued in that case that the class action was the right way to do all of this. I think the point that's going to be in contention is whether you can do this, like, quick-and-dirty class certification or whether you need to go through the full discovery and other procedures that we normally do in class actions before you can certify it.
SIMON: Professor Fitzpatrick, how do you perhaps foresee class action lawsuits being used in the coming months?
FITZPATRICK: I think this is going to be the new technique that people that are challenging the administration use. We've already seen several other cases employ this technique in their complaints and their amended complaints, and so I think this is going to be the new way to go. And unless the appellate courts or the Supreme Court tell the lower courts that they can't do these quick and dirty certifications, I think we're going to be right back where we were a month or two ago, when the courts were entering these nationwide injunctions immediately against all these Trump policies. And so I'm not sure much is going to change from where we were. I think judges are still going to have a lot of power to shut down the administration very quickly.
SIMON: Brian T. Fitzpatrick, a professor at Vanderbilt University. Thanks so much for being with us.
FITZPATRICK: My pleasure.
(SOUNDBITE OF TASH SULTANA SONG, "JUNGLE") Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
