Class actions in federal court are governed by Rule 23, which lays out stringent requirements that plaintiffs must meet to secure class certification. Among them:
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Numerosity: The class must be so large that joinder of all members is impracticable.
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Commonality: There must be questions of law or fact common to the class.
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Typicality: The claims of the representatives must be typical of those of the class.
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Adequacy: The representatives must fairly and adequately protect the interests of the class.
Additionally, under Rule 23(b)(3) — the most likely provision for a case seeking damages or widespread declarations — plaintiffs must show that common questions predominate over individual ones, and that a class action is superior to other methods of adjudication.
🚩 Why birthright citizenship claims run into trouble
At first glance, a broad case challenging birthright citizenship might seem to check at least some of these boxes, given the large number of people potentially affected. But dig deeper, and the theory runs into serious problems.
1. Individualized facts
Determining citizenship status often hinges on highly individualized circumstances:
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Where exactly was the person born?
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What was their parents’ immigration or diplomatic status at the time?
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Were there any exceptions (like children of foreign diplomats)?
These individual variations undercut commonality and typicality — two cornerstones of class certification. Courts have repeatedly rejected class actions where liability turns on person-by-person inquiries.
2. Predominance problems
Even if there are overarching constitutional questions, under Rule 23(b)(3), plaintiffs must show that common issues predominate over individual ones. Because each individual’s eligibility for citizenship may require separate fact-finding, courts are unlikely to find that common issues predominate.
3. Adequacy & due process
Who would represent this putative class? Class representatives would need to adequately protect the interests of all potential class members, many of whom might have differing — or even conflicting — interests. The stakes are enormous: citizenship isn’t just a civil benefit, but a core identity and constitutional status. Courts would be extremely cautious about consolidating such interests under a single set of representatives.
🔍 Courts wary of sweeping constitutional class actions
Federal courts are also traditionally reluctant to certify massive constitutional questions affecting broad populations under Rule 23. Such issues are often better suited for individual litigation or resolved through political processes, given the profound stakes and individualized impact.
Moreover, courts avoid issuing advisory opinions. Certifying a nationwide class to determine the meaning of “subject to the jurisdiction thereof” in the 14th Amendment — outside the concrete context of individual cases — risks precisely that.
✅ The bottom line
While the idea of a class action to overhaul or challenge birthright citizenship might make for compelling headlines, the procedural realities of Rule 23 paint a different picture.
Certification isn’t a sure thing — in fact, it’s exceedingly unlikely. The requirements of commonality, typicality, predominance, and adequacy of representation create formidable barriers. For now, any legal battle over the meaning or limits of birthright citizenship is likely to unfold case by case, not via sweeping class action.
Compiled by ChatGPT
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