Class Actions, Coercion, and the Constitution: The Paradoxical Erosion of Individual Rights in Immigration Enforcement

Procedural Justice Undone by Procedure Itself

The Supreme Court’s shadow docket and emergency orders have dominated recent headlines, but buried just beneath is a quieter transformation taking place in district courts: the expanding use of class certification in high-stakes constitutional and immigration cases—most recently in litigation involving mass removals under the Alien Enemies Act (AEA). At first glance, these class actions appear to be instruments of procedural justice, designed to ensure fairness for groups facing systematic government action. But that promise often masks a more troubling reality. District courts certifying putative classes “in the name of due process” may be doing so at the cost of due process itself.

This emerging paradox—procedural protections that dilute individual constitutional rights—deserves urgent scrutiny, particularly as federal courts increasingly treat unverified classes as legally operative in the context of deportation, detention, and national security policy. The result is a system in which individuals may be functionally bound by litigation they never joined, represented by counsel they never chose, and deprived of the opportunity to assert claims or defenses unique to their circumstances. In the push to deliver uniform remedies, the judicial system may be sacrificing the very individual autonomy and adversarial protections that due process guarantees.

I. The Rise of Rule 23 in Constitutional and Immigration Litigation

Rule 23 of the Federal Rules of Civil Procedure provides the framework for certifying class actions in federal court. It was crafted to promote efficiency and fairness in cases involving numerous similarly situated plaintiffs—most commonly in the context of consumer, antitrust, and securities law. Over time, however, it has migrated into more constitutionally fraught territory: conditions of confinement, voting rights, public benefits, and now, the enforcement of immigration laws under wartime authority.

The recent wave of litigation challenging deportations of Venezuelan nationals under the AEA is illustrative. Plaintiffs have alleged that the executive branch is invoking national security powers to fast-track removals without individualized hearings, in violation of the Fifth Amendment. To counteract systemic harms, advocates have sought class-wide relief, arguing that common questions of law and fact justify a collective challenge. Some district courts have agreed—certifying or provisionally recognizing classes encompassing all similarly situated noncitizens subject to expedited removal under the Act.

II. The Constitutional Deficiency of Non-Opt-Out Classes

Many of these cases proceed under Rule 23(b)(2), which authorizes class actions for declaratory or injunctive relief and—critically—does not require opt-out rights for absent members. This alone raises significant constitutional concerns. In Phillips Petroleum Co. v. Shutts, the Supreme Court held that due process requires notice and an opportunity to opt out in (b)(3) money damages classes. Yet for classes involving liberty, bodily autonomy, or immigration status—arguably more fundamental interests than money—the procedural protections are weaker.

This contradiction is no minor technicality. Immigrants subject to removal under a class-wide order may never have received formal notice, may disagree with the litigation strategy of named plaintiffs, or may have unique facts supporting asylum, CAT relief, or other defenses. Binding such individuals to a single remedy—crafted for the average class member—may result in the extinguishment of viable constitutional claims without their meaningful participation. And courts often defer to government characterizations of national security or group affiliation in certifying such classes, compounding the risk of overreach.

III. The Problem of the Putative Class

The situation is even more troubling at the putative class stage—before the court has certified anything. In many recent cases, courts and litigants alike begin treating the group of proposed plaintiffs as a legally relevant entity, even before Rule 23 analysis is completed. Government agencies have delayed or stayed individual adjudications on the ground that class-wide relief is pending. Meanwhile, individuals are effectively blocked from pursuing independent legal strategies, trapped in procedural limbo. They are treated like class members for practical purposes—but without the rights or protections of actual class certification.

This de facto coercion violates basic tenets of procedural due process. As the Court held in Hansberry v. Lee, a person cannot be bound by a judgment in a class action unless they were adequately represented and had a meaningful opportunity to be heard. Neither is assured during the putative stage. Worse, when national security or removal policy is at issue, courts may be reluctant to scrutinize the adequacy of representation, deferring instead to the urgency of government interests.

IV. A Structural Problem in Search of a Remedy

The use of class actions in this context is not per se unconstitutional. Indeed, there are many instances—particularly involving structural injunctions or detention conditions—where class certification has served justice. But the reflexive use of Rule 23(b)(2) without opt-out rights, in cases where individual liberty is on the line, creates unacceptable tension with constitutional norms. The stakes are highest in immigration enforcement, where the government's interest in uniformity and expediency must be balanced against each person’s right to be heard.

Courts should revisit the constitutional foundations of Rule 23 in this space. At minimum, they should require individualized notice and the opportunity to opt out in (b)(2) classes where fundamental rights are implicated. Congress, too, should consider legislative reform clarifying that no person may be bound by a class-wide judgment absent clear and voluntary consent. If due process is to mean anything, it must protect individuals not only from the state, but from well-intentioned procedural shortcuts that obscure their voice in the system.