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- [00:01]
Michael Popak
Forget the academic. We're not academics. Forget the hypothetical. We live in the real world. And lawyers have already filed new cases off of Friday's decision by the United States Supreme Court to imperil birthright citizenship in the 14th Amendment. How did they do it? Why did they do it? How did they do it in just hours? And what happens when you have multiple new class actions? We're going to learn a lot about class actions on this hot Take multiple class actions seeking temporary restraining orders about the same class. Then what do you do? What if you have competing class actions? POPOC well, there is a way to resolve all of that. As we have at least two different judges with two new class actions in front of them and they're dealing with it as we speak. This is what happens when the resistance is ready for what the Supreme Court could do. Nobody was caught flat footed. Everybody filed new suits. As. As was invited by Justice Kavanaugh. As was invited by Justice Sotomayor. Let's break it down right here on the Midas Touch Network and Legal afm Michael Pop okay, how do we get here? We got here because starting with the fifth day of this administration, three different courts started issuing nationwide injunctions to block Donald Trump to declare his executive order on birthright citizenship unconstitutional. That you can't change a constitutional amendment based on an executive order. Rock, paper, scissor, you lose. You want to change the constitutional amendment, you either have to convince the United States Supreme Court to reinterpret clear and ambiguous language or you got to change the, you got to amend the amendment or amend the Constitution. Not happening. Can't do it by executive order. So you got three nationwide injunctions. Okay. It went up to the United States Supreme Court over the spring with a ruling on Friday not on birthright citizenship per se, but on the nationwide injunction powers of a federal judge and the Supreme Court. Six to three MAGA right wing ripped out of the toolbag from federal judges. The ability to issue nationwide injunctions based on the parties they have in front of them. They said go back in your lane. The MAGA majority stay in your lane. Federal judges color within the lines. Federal judges declaration of what's constitutional or not on a nationwide basis is for the United States Supreme Court, not for you lowly federal judges. You get to just issue injunctions that fit with the parties that are in front of you. You just do cases and controversies. We'll do the big picture. And despite the fact that months or years can go by and babies are born without nation, they're nationless. Their citizenshipless they don't get government funding in red states. They don't get a passport. But to the Supreme Court. Well, this is what we're, this is what we're declaring. We're. They left open a couple of major holes, like what happens when a group of states get together and sue for a nationwide injunction. Like 19 or 20 states that got together. Well, we'll punt for that for another day. Shouldn't I know that coming out of the order on Friday? But I don't. And so we have that, that new gray area, but two invitations. The only time that Kavanaugh and Sotomayor ever got along is in there. They had the exact same, almost the exact same line in there. For Kavanaugh, it was his concurrence, meaning he agreed with the majority and with Sotomayor, her dissent. And they said, well, you can get the equivalent of a nationwide injunction if you move for a class action status, class action certification and a temporary restraining order on top of that. That's a nationwide injunction. So the mayor said, effectively, get on your high horse. Hurry up, go file. And the group in Maryland led by Georgetown University was ready because within less than three hours, they filed a class action complaint, a motion to certify the class, and a temporary restraining order. And then just hours after that, in New Hampshire, in front of Judge LaPlant, the American civil Liberties Union and a bunch of other groups, including Democracy Forward, Norm Ison, they filed in front. They filed in front of a judge up in New Hampshire seeking the exact same thing. Hold that thought. We got competing class actions. Potentially, Potentially. What's a class action? Quick tutorial. There's two ways to bring cases in court. Individual actions, collective or class actions. Individual actions. You have a dispute, you have a breach of contract, something happened to you, you were injured, you and a group of people were injured. Not that large of a group of people. You all have rights under a contract or you live together, you lived in the same area, you got an environmental disaster, some sort of personal injury, some sort of tort or defamat. It's not a lot of people. You know, 8, 9, 10, 20, 50 people, maybe they sue together in court under some right to have some right declared over some injury that's individual. Okay? And now with the Supreme Court, it says when you have those cases, you can only fashion federal judges injunctions that fit that those parties and only apply to those parties. No more nationwide injunctions. Okay? That's terrible in a lot of different areas, by the way. Environmental cases, terrible. Civil rights cases, terrible to Take away that power of a federal judge. All right. But that's what it is. Did you know the liver is the.
- [05:17]
Unknown Speaker
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- [07:15]
Michael Popak
Now you have class action or collective action. That is a couple of people represent, along with their lawyers, a class of people certified by the judge that are similarly situated, that have injuries that are similar or you can break them up into subclasses and you can bring the case together. So you don't need to bring 100,000 or 300 million people together on a constitutional violation because we're all being violated, right? By Donald Trump, you know, and so he's doing nationwide damage. There needs to be a nationwide tool in the toolbox. So they want it to be supreme court wants it to be class actions. So there's a set of rules about how you bring class actions and what the requirements are and the elements of it. It's so it's Much more difficult than just getting a nationwide injunction from a federal judge. That's why it's reported as a win for Donald Trump. But you can do it. I can't think of a better case than a birthright citizenship attack that affects all Americans, especially mothers who gave birth after February with the executive order or are pregnant or into the future. You put them all into a class. Now, New Hampshire's case and Maryland's case are almost identical. I've looked at both of them, right, in terms of their class, of who they're defining as a class.
- [08:31]
Unknown Speaker
So then what do you do?
- [08:32]
Michael Popak
Because you can't have really, you're not supposed to have competing class actions with potential orders by different judges on different, in different ways. One grants the injunction, one doesn't grant the injunction. So we're going to find out. Judge LaPlante is going to hold a conference in New Hampshire that I'll report on. Judge Boardman is holding a conference this week, early this week in her courtroom about the procedure around the class certification. Obviously going to be opposed by Trump and moving forward so she can make what Justice Sotomayor wants, a fast ruling so that it gets up to the Fourth Circuit Court of Appeals or the First Circuit Court of Appeals and ends up at the United States Supreme Court this summer. That's the goal. Because think of the purgatory in the limbo these babies and their mothers are living in. There are babies born now, right, in a red state. Birth certificate says that state. Alabama, for lack of a better Mississippi. Right. Person says baby, US Baby. United States citizen funding, you know, I need, I need, you know, support or social services or I need a passport. No, we don't recognize you as a US Citizen. What do you mean? Well, there's an executive order. Yes, but it's in litigation. Right, but the, the injunctions have all been stayed effectively. And so now, so now has to go back through a process and babies are being born every minute. That's the problem. That's the real world that we live in now. How do you solve the problem of competing class actions? Let me end it that way. There is a mechanism. There's a joint panel for multi district litigation. Of course there is. And the joint panel for multi district litigation takes up the cause of when there's competing class actions about who's going to, which class action is going to be the one or how they're going to consolidate them or maybe one gets stayed while the other one moves forward and what judge is going to handle it. So that multi district panel which is very weird, by the way. It's sort of a secret panel nobody ever thinks about. And it's all appointed by John Roberts, the chief justice. And right now, the seven members of it, four are George W. Bush appointees of all things. Two are Clinton and one is Obama. No Trump, no Biden at all. And this group is going to make a decision about who's going to be the judge. Could be Judge LaPlante, could be Judge Boardman, New Hampshire, Maryland, could be Judge Kofnor. That's my vote. Senior status judge out in Seattle who made the first ruling against the Trump administration about birthright citizenship. Five days into their administration. He's good. You know, they look at the credentials, they look at the docket, they look at how you know where you know which case makes the most sense in terms of proximity or what we call locale or situs witnesses availability here.
- [11:21]
Unknown Speaker
It's a nationwide issue.
- [11:22]
Michael Popak
You can put it anywhere. So I think they're going to find the best judge. I think if there's a case that's filed which hasn't yet been in, in Seattle that matches these two, then they'll it may end up with Judge Kofanaugh. Usually it's the first to file. So the first to file was Maryland. That's Judge Boardman. That's being led by Georgetown. The backup case is New Hampshire, led by the ACLU and Democracy Forward. And then we'll wait to see if a case gets filed in in Washington at all or Seattle at all. And this panel would decide it. They can do it on their own initiative. They can do it because the party asked for it. If usually if you're the defendant, you want one case. So we'll have to see what Trump does next. We'll know more when the Boardman hearing takes place early this week. We'll know more when Judge LaPlant holds their hearing. And then we'll see if this multi district litigation panel comes into play. In the meantime, I'll keep you posted. I'm Michael Popak. You're on the Midas Touch Network. You're on Legal af. Come over to Legal F God, we're so close, I can taste it to getting to 700,000 subscribers in less than eight months. Over on the Legal AF YouTube channel, with your help, we vibrate on that same frequency. With your help, we will get there. So until my next report, I'm Michael Popak. Can't get your fill of Legal af.
- [12:37]
Unknown Speaker
Me neither.
- [12:38]
Michael Popak
That's why we formed the Legal AF substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called Wait for it Morning af. What else? All the other contributors from Legal AOFF are there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast Hot Takes where Legal AF on Substack. Come over now to free subscribe.
- [13:12]
Unknown Speaker
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