ARE CLASS ACTIONS THE NEW SUBSTITUTE FOR “NATIONWIDE INJUNCTIONS?”
“Nationwide injunctions?” Is it true that they are now banned? And if that is so, where will the litigation go next?
Well maybe …… attention is now shifting to the use of class action lawsuits rather than “nationwide injunctions.” Class actions do have more requirements:
…. that a person is representative of the class
…. due process notification of persons within the class (which may rule out injunctions against people who are not involved yet …. in the immigration setting persons who haven’t crossed the border yet), and,
…. and may have other requirements and limitations.
Actually, one group has already filed such a class action on a immigration issue.
Possibly in class actions a the court may not be able to even enter “an injunction” affecting that class without first conducting a trial or a summary judgment. Also, possibly injunctions entered in class action lawsuits are just as barred as nationwide injunctions outside of class actions.
This could mean: first, it may take longer for district judges to attempt to exercise presidential powers via a using a class action as a substitute for the now barred “nationwide injunctions”, second, it is possible some judges may rush such class actions on the docket i.e. by using a quick rushed summary judgment, and third, it could possibly affect a District Court’s ability to keep litigating the case even in the case where the District court’s initial action of “nationwide injunction” or class action judgment is reversed (see next paragraph).
Nationwide injunctions have been entered on a preliminary basis. Preliminary rulings mean that usually the case isn’t over, even if the ruling is reversed. If such a preliminary injunction is reversed, the case simply goes back to the court that first entered the injunction for further action. It is possible that the class action remedy in some circumstances will lead to a permanent ruling, rather than temporary. Also some class action appeals may result in lower courts not having any leeway for further rulings or actions. Even if true, this likely won’t be a universal consequence because sometimes appeals court do “remand” a case back to a lower court.
The comments above are speculation only, and time will tell. We shall have to see how the class action remedy plays out in court, if indeed such actions are to become the “new normal.”