Weekend Law: Birthright Citizenship, SCOTUS Stats & Lululemon Suit

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1:44This is Bloomberg Law with June Grosso from Bloomberg Radio. No matter how much the Trump administration may dislike it, they cannot break it, they cannot ignore it. It is the right of every child born in this country. The legal battle over President Trump's executive order on birthright citizenship went all the way up to the Supreme Court and is now back at the district courts where it started. And on Thursday, a federal judge in New Hampshire placed a new nationwide block on the order and certified a class action lawsuit against the administration on behalf of all children whose automatic citizenship could be jeopardized by the president's order.

2:30Cody Wafse of the ACLU is the lead attorney on this class action lawsuit. The idea that the president can rewrite who is a citizen and decide who gets to count as an American is extremely dangerous and deeply, deeply contrary to our national values. This case may be on a fast track back to the Supreme Court. Joining me is Leon Fresco, a partner at Holland and Knight and the former head of the Office of Immigration Litigation in the Obama administration. Liam, at the end of June, the Supreme Court in the birthright citizenship case limited the ability of federal judges to issue nationwide injunctions.

3:12But it left open the path to reach the same result with a class action lawsuit. Explain how this lawsuit did just that. So this was the first of many cases where basically litigates raced to the courthouse and tried to get a class certified that would encompass the entire nation. And the judge here actually did certify a class. The judge certified a class of all current and future persons who are born on or after February 20th, 2025, where the person's mother was unlawfully present in the United States, and the person's father was not a United States citizen or lawful permanent resident, and then vice versa, same thing on the other side.

3:57So the government objected to this and said, well, the Supreme Court stated that they didn't want class certification to be used as an end run around the nationwide injunction issue, to which this court said there's nationwide class actions all the time for all kinds of issues. and the judge wasn't actually ordering a quote-unquote nationwide class action. The judge was just saying that he was ordering a class action of people who were born on or after February 20, 2025 that were subject to this birthright citizenship executive order. So if those people are in one state or another, it's not his problem.

4:38He's just looking at it from the perspective of, is this a common class with typical claims? And so the judge certified that class, Interestingly, the judge did not include the parents, even though the litigants wanted to include the parents in the class, because the judge said, look, the problem with the parents is each parent is going to suffer a different kind of harm from their kids not receiving citizenship. And so that's not going to be common to a class. So the judge was actually very precise and thorough there. And the judge said the only thing that's common that you can form a class is you get the passport or not, essentially.

5:15So we're kind of back to where we were before the Supreme Court's decision. And the judge has stayed the order for seven days, allowing for an appeal, allowing the First Circuit to be able to weigh in. I'm sure the First Circuit will approve of what this district court judge did. And then the question will be, what, if anything, does the Supreme Court do about this? In issuing the injunction, Judge Joseph LaPlante, who, by the way, is a George W. Bush appointee, said it wasn't even a close call. Do you think his preliminary injunction and class certification will pass muster at the Supreme Court?

5:52It's going to be a very interesting test from the standpoint of does the Supreme Court really want to crack down on anything nationwide and will simply say, look, you have to just have class actions that are not nationwide either. But that's going to be very strange because, for instance, let's say there's some product that's not working and causing the same damage to every single person. Is there really supposed to be 11 different class actions in different circuits where they say, you know, everybody whose mechanism exploded in the first circuit and everybody whose mechanism exploded in the second circuit?

6:32That doesn't seem like it would make a lot of sense. So why a class action with regard to people affected by birth right citizenship should be constrained to a particular circuit or a particular state doesn't seem to be very compatible here. There's that and the fact that the judge really took pains to not just willy-nilly certify a class, but go through the fact that the parents didn't have these common and typical claims, but the kids did have this one typical claim, which is they want citizenship and they are unable to get it, seems to me very strong. And I don't know how the Supreme Court would say that you can't certify a class that would then operate nationally in a case like this.

7:14But we'll have to wait and see. This looks like it's on a fast track to return to the Supreme Court. And during the oral arguments in the case, several of the justices indicated that they wanted to rule quickly on the actual legality of the executive order. Justice Neil Gorsuch said, how do we get to the merits fast? Obviously, they did not do that. But on its return to the Supreme Court, do you think the justices will actually decide the merits of Trump's executive order on birthright citizenship? They could say that we will preserve the injunction and we will take up very fast the merits of this first thing in October when we come back.

7:59So they could do that. They could also just issue one of those stays that's basically a one-page order that stays the district court's order. And if they do that, then what that would mean is that the birthright citizenship executive order will actually go into effect while the case is working its way as a matter of the full merit through a final judgment in the district court through the First Circuit and back up to the Supreme Court. because there have already been two of these stay orders with respect to eliminating temporary protected status and parole and being able to deport people to any country you want to be able to deport them to other than their home country that were decided with these very brief stays and not really the merit discussions of the ramifications of making those decisions.

8:52And I saw that former Attorney General Alberto Gonzalez said that he didn't think that there were the votes right now to say that the birthright citizenship executive order is unconstitutional, and that's why the court punted the issue. So if he's right, then they might issue this stay, which would be quite an upheaval to figure out then what happens to these individuals during the time period that this case is working its way up to the Supreme Court. That kind of stay would be against Supreme Court precedent, but they have overturned precedent before, so we'll see. Leanne, I want to turn now to this federal trial in Boston where several university associations are challenging the Trump administration's crackdown on non-citizen students and faculty who participated in pro-Palestinian demonstrations.

9:46They argue it's suppressing free speech on campuses. The plaintiffs have singled out several activists by name, including Columbia University graduate student Mamou Khalil, who was the first target of this crackdown and spent 104 days in federal immigration detention before being released. They tried to portray me as a violent person. They tried to portray me as a terrorist, as some lunatic, but not presenting any evidence, not presenting any shred of credibility to their claims. This is the first case of its kind to actually go to trial, where the judge isn't just looking at what happened to specific individuals, but rather is looking at the policy.

10:36Now, the Trump administration denies that it has any such policy and says that it's enforcing the immigration laws to protect national security. The trial judge William Young has said the trial is likely to center on the question of whether non-citizens legally in the country have the same free speech rights as citizens. Is there case law on that? Well, there actually is case law on that, and that case law is pretty bad. There's a case called Harris-The-Obbis v. Shaughnessy from the 1950s, and it dealt with actual lawful permanent residents of the United States, so not non-immigrant visa holders like student visa or visitor visa holders.

11:16These were actual lawful permanent residents. And the issue was there was a statute that said not just current communists, but even former members of the Communist Party could be deported. And this was in the height of the Cold War. And these folks argued, wait a second, I'm not even in the Communist Party anymore. I've renounced my affiliation with the Communist Party. And even if I was a communist, what difference would it make if I wasn't actually violently seeking to overthrow the government? Why would I be deported for my First Amendment values? And that court in 1952 said, no, in these statutes involving non-citizens, the First Amendment does not overcome the security concerns and the legitimate security concerns of the government, even if the person is a lawful permanent resident.

12:06So if the Supreme Court actually upholds that doctrine here again in 2025, then it will remain the same, which is that when you're not a citizen of the United States, your First Amendment rights are not superior to the rights of the government to be able to deport you for conduct that they feel is deportable conduct. We shall see. Is the judge also going to consider whether the Secretary of State is revoking these visas in good faith because of concerns about foreign policy and national security? Yes. First, what First Amendment rights do the non-citizens have? But then number two, the judge may say, well, fine, that's all fine and dandy.

12:47But if the adjudications here are pretextual and I can find that they're completely pretextual, meaning there actually is no threat to foreign policy of any kind, I can still halt these deportations. The trial will continue next week. And in yet another lawsuit, Mahmoud Khalil has filed a$20 million claim against the Trump administration for false imprisonment. So many immigration cases. Thanks so much, Leon. That's Leon Fresco of Holland and Knight. Coming up next on the Bloomberg Law Show, the stats are out on the Supreme Court's recent term. I'm June Grosso, and you're listening to Bloomberg.

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15:35and daily cash back, making Apple Card a road trip must have. Apply for Apple Card now and use in minutes with Apple Pay. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA, Salt Lake City branch. Terms and more at applecard.com. Justice Ketanji Brown-Jackson has been a vocal critic of the Trump administration. This term, she's written strong dissents, bemoaning Trump's attempts to expand presidential authority, raising concerns about a lack of willingness to adhere to the rule of law and accusing her conservative colleagues of running the risk of eroding public trust in the impartiality of judicial decisions.

16:15That viewpoint was apparent as she answered questions at an Indianapolis Bar Association on Thursday. What keeps you up at night? I would say the state of our democracy.

16:35I would say that I am really very interested in getting people to focus and to invest and to pay attention to what is happening in our country and in our government. So it comes as no surprise that Jackson was the justice most often in dissent this term. Joining me is constitutional law scholar Harold Krent, a professor at the Chicago-Kent College of Law. How SCOTUS blog's stats of the term have come out, and 42 percent of the Supreme Court's decisions were unanimous. And that's something that Chief Justice John Roberts in particular likes to point to in order to show how much the justices are in agreement.

17:19But does that agreement really matter when, in all the controversial cases involving hot-button issues like LGBTQ rights, religious rights, those all fall down ideological lines six to three? Well, the union in me, I think, is a reminder to us that it's still a court and that members of the court can agree with each other in questions in terms of, you know, error review, in terms of what the courts of appeals make a mistake, which is in terms of reconciling a split in the circuits. And I think it's a good reminder that the court is a court, but that shouldn't obscure the fact that, as you said, in socially divisive cases, there's almost inevitably a 6-3 split with some changes around the margins.

18:04Roberts was in the majority 95 percent of the time, the most of any of the justices, followed by Brett Kavanaugh at 86 percent and Amy Coney Barrett at 81 percent. Do any of those numbers surprise you, just to tell you that the middle of the court is ruling? No, it doesn't surprise me at all. Obviously, those three justices do wield a lot of the power on this current court, and they will do so for the foreseeable future. Obviously, there's some changes around the margin. I mean, sometimes Justice Gorsuch sides with the minority, same thing with Justice Barrett. And I think we've even seen Justice Kagan occasionally trying to side with the more conservative wing of the court in order to, I think, in her view, probably try to establish more of a middle ground.

18:48Yeah. What's gotten a lot of tension in the legal press was that Justice Kagan came in fourth. She was in the majority of 70 percent of the term's non-unanimous outcomes. There was a 13 percent drop in the agreement between Kagan and Justice Sonia Sotomayor. And the agreements between Kagan and conservative justices, up 22 points with Justice Alito and up 29 points with Justice Thomas. Some people say, oh, well, she's getting more conservative. But is that really the case? No, I think she tries to find common ground when she can. And maybe that can be criticized, is that she's sort of tempering her own views to that of trying to help the institution gain a middle ground.

19:32But I think it is perhaps a positive institutional development, as she is, at least in my view, in some of her decisions, trying to establish that there is common ground amongst the so-called conservative and so-called liberal justices. And not in all cases, but in some where she can. And I don't know if that'll have any kind of long-lasting impact or if it will change the trajectory of the court. But I think that's her goal. Justice Ketanji Brown-Jackson had the honor of being in the majority, the least of all the justices, at 72 percent. And she's written some biting dissents. She is carving out her role as being the most progressive justice and the one least willing to compromise with the rest of the court.

20:17Voices like that are important to hear, but they're not necessarily positive ways to galvanize a majority of the court. My favorite part of the stat pack is seeing which circuits get reversed the most. And this year, the fourth circuit went from being the best to the worst, or at least one of the worst. From 2007 through 2023, it had the lowest rate of being reversed, 62.1%. But this term, it jumped to a 100 % reversal rate, eight out of eight cases overturned. Any idea why? I think a little bit is just a blip. These variances occur from time to time. But I also think that given the location of Fourth Circuit, they are centered where so many federal government employees are, centered where there's a lot of grants in terms of HHS offices, Social Security Administration, and so forth, that there's a lot of current litigation against the Trump administration, which is just centered geographically in that district.

21:16So it's not surprising that there's a higher percentage of cases in the Fourth Circuit that are reaching the Supreme Court. And of course, it's a little bit of a blip, but it's understandable that there's going to be more cases that the Supreme Court's going to resolve against the Fourth Circuit. Fourth Circuit is relatively ideologically balanced, so it's not considered to be either a very liberal or a very conservative court. But nonetheless, there's a lot of these cases that have arisen there. And so we're seeing tension between the Fourth Circuit and the Supreme Court. The reversals of the Fourth Circuit included some of the blockbuster cases of the term, like the birthright citizenship case where the court made it harder for judges to issue nationwide injunctions, the case where the court allowed religious parents to opt their children out of lessons where LGBTQ-friendly books are read, and the case paving the way for South Carolina to exclude a Planned Parenthood affiliate from its Medicaid program.

22:13All of those cases were six to three with the liberals dissenting. So I'm wondering if the Fourth Circuit is more in line with the liberals on the court than the conservatives on the court. Is there a certain partisanship there? I would frame it that the Fourth Circuit is in line with traditional conservative judicial principles and that this court has veered from those traditional conservative judicial principles, which is why we're seeing the gap. I think that the Fourth Circuit is cautious and it's trying to adhere to the sort of judicial principles or judicial customs, perspectives, the way they've understood them for a generation.

22:54And that's running against the current Supreme Court's position, which seems to be far more solicitous of both judicial power as well as presidential power. It used to be that the Ninth Circuit had the most cases reviewed by the Supreme Court. But now it's the Fifth Circuit, the most conservative circuit. It had 13 cases taken up by the court this term compared to four from the Ninth Circuit. And the Fifth Circuit was reversed in 10 of the 13 cases. So has it taken the place of the Ninth Circuit as most reversed? Well, the Fifth Circuit is known as the most conservative but an activist conservative court.

23:35The Ninth Circuit has been historically known as the most activist of progressive or liberal courts. So it's not surprising that decisions from those two circuits disproportionately go to the Supreme Court. And indeed, we're seeing an interesting switch now in the Fifth Circuit because the Fifth Circuit led the charge against the Biden administration in some very surprising cases, including two delegation cases in which the Supreme Court struck them down this term. And the question is, will they be as anti-administration when it comes time to review that which the Trump administration is doing?

24:09and early records are mixed. So that's something to look to. I think that some of the ardor of the Fifth Circuit in terms of being anti-administration will be dampened now with the switch politically at the top of the helm. Has the Fifth Circuit been trying to push the envelope, so to speak, and be more aggressive in terms of conservative policies or jurisprudence? Well, the Fifth Circuit has been at the cusp in terms of pushing against administrative power, power of the agencies to rule. I mean, for instance, in the telecommunications case, they had sought to curb the power of the Federal Communications Commission to impose attacks on telecoms.

24:51And that, of course, was upheld. I mean, the Biden administration pursued that plan, but so did the Trump administration. And so the question is, will the Fifth Circuit continue its sort of skepticism about administrative power, given that President Trump is now atop of the executive branch. So time will tell whether they'll continue. But clearly, in case after case, particularly during the Biden administration, they challenged the legitimacy of administrative agencies, you know, in terms of the vaccine policies, in terms of student loans, and more. When the justices take cases, they usually take them to reverse, don't they?

25:31I mean, 44 out of the 59 cases they took this term were reversed. That's generally the case, but obviously more generally they take cases when there's a split and the court needs to resolve a split in the circuits. So sometimes it's just a matter of which of the two cases they take because one case goes one way and one case goes the other. So sometimes those figures are a tad misleading. A lot of the action this term has been on the shadow or emergency docket where the Trump administration has repeatedly been asking the Supreme Court to lift lower court orders while the cases proceed. Just this week, the court gave Trump the OK to move ahead with mass layoffs of federal workers.

26:13Is this just part of the trend of the court on the emergency docket, lifting lower court orders that blocked the Trump agenda? Well, I'm of two minds about the most recent decision. I mean, what the court did is removed an injunction on the administration from trying to carry out the RIF. But it did not say that the RIF was appropriate or consistent with congressional direction. And I think that was made clear as well because of the fact that Justice Kagan went along with the majority, allowing the administration's action to proceed. And the executive order says that the RIF or the reduction of force must proceed according to applicable law.

26:53And applicable law, of course, is Congress's very detailed instructions for how agencies should proceed. And I think the reason why Justice Kakin did join the majority was because we have yet to see whether the administration will conform to the congressional blueprint for carrying out the reduction force or not. And so, yes, the court is giving the benefit of the doubt to the administration. And yes, many would think that the administration doesn't deserve the benefit of the doubt. But I think what the court's action is saying, well, let's wait until there's a merits decision as to whether the applicable congressional rules were followed before we actually tell the administration they can't move forward in that way.

27:35The administration, they can't move forward in that way. Well, all along, the court has been letting the Trump administration go ahead for now. But the problem is that getting to the merits of these cases takes so long. and by that time the damage is done. People have been fired. Yeah, the court has been very cavalier, if you will, in terms of balancing the harms. I think the reduction in force case is a good illustration of that because yes, the government wants to save money and restructure the federal government and there is a loss if they can't do that to what they consider to be the public good.