Nit-Picky Procedural Criticisms of the Migrants' Suit Against Ron DeSantis et al
by Michael C. Dorf
In addition to the possibility of criminal charges for their role in using Venezuelan migrants as what I called human spears in my Tuesday blog post, Florida Governor Ron DeSantis, other Florida officials, and the State of Florida itself now also face a civil lawsuit filed on behalf of the migrants. The complaint alleges a much more elaborate plot to trick the migrants than has been widely reported. For example, one of the plaintiffs was (allegedly) put up in a hotel for five days and told by someone secretly working for DeSantis that if her "family got on the flight" the DeSantis agent had "arranged, then Plaintiff would be provided with permanent housing, work, educational resources for her son, and help changing her address for immigration proceedings." The factual allegations, if true, indicate that this was indeed a carefully calculated ruse and stunt.
But what about the law? The complaint asserts common-law, statutory, and constitutional claims. I haven't looked too deeply into the underlying law, but on the surface, at least some of them look plausible. After all, even undocumented immigrants have civil rights. Key provisions of federal law, including the Fourteenth Amendment's equal protection and due process clauses, protect "persons," not just citizens. And in any event, the migrant plaintiffs are not undocumented immigrants in the sense in which that term (or the offensive term "illegal alien") is commonly used. They are asylum seekers who did not sneak across the border but turned themselves in to US border patrol officials and were then paroled pending hearings. Thus, unless and until their asylum claims are rejected, they are in the US legally.
Accordingly, I have considerable sympathy for the migrants' lawsuit and hope that it may ultimately succeed in at least some respects. Nonetheless, I want to raise questions about some of the procedural aspects of the case. I'll focus mostly on: (a) the decision to bring the case as a class action on behalf of the Venezuelan migrants as well as similarly situated persons in the future; and (b) the decision to include the State of Florida as a defendant.(a) Class action. According to published reports, the plane from San Antonio to Martha's Vineyard carried 48 migrants. (The complaint alleges that "[a[t least fifty (50) individuals have been transported pursuant to Defendants’ relocation scheme to date." Nothing turns on the difference between 48 and 50.) In principle, it should have been possible for all of the Venezuelan migrants to file individually and have their claims joined together pursuant to Federal Rule of Civil Procedure (FRCP) 20. However, that would have been at least a bit ungainly. Moreover, obtaining informed consent and an agreement to represent each of the 48 migrants would have been time-consuming.