Making a new test of courts’ power to block President Trump’s actions, a federal trial judge in New Hampshire on Thursday issued a sweeping order to protect the constitutional right of newborn babies to U.S. citizenship.

U.S. District Judge Joseph N. LaPlante of Concord issued the order while reaching a new decision that Trump’s attempted ban on “birthright citizenship” for children of non-citizens living in the U.S. probably violates both the Constitution and a 1940 federal law protecting that right.

The judge defined a group of newborns to be protected by his order that may number more than 200,000 a year, across the nation.  These are the children who have recently been born or will be born who were threatened by Trump’s ban, which was aimed at children born to parents who are in the U.S. illegally or only temporarily – to work, study or visit.  If the ban were ever to go into effect, those babies could be deported soon after being born.

Judge LaPlante had been one of four federal judges who earlier had issued nationwide orders forbidding enforcement of the ban anywhere in America.  But that kind of “universal” mandate was struck down last month by the Supreme Court, declaring that judges could only protect the people directly involved in a case before them, not people nationwide even though many others,  too, would be affected.

That ruling had raised the prospect that a multitude of lawsuits would be pursued by one or only a few individuals, resulting in a patchwork of decisions with the ban in effect in some places but not others.

The New Hampshire judge, however, became the first to try a different approach, an alternative which the Supreme Court appeared to have left open.  Under federal law, a judge can define a group of people – a “class” – that shares a common interest and a mutual legal complaint but are too numerous to be protected individually.  The law imposes quite rigorous tests for defining such a class.

This approach makes it unnecessary for every individual in the class to file their own lawsuit, because all of the class members will benefit if the case is successful.

Judge LaPlante did not say specifically in his order that her was setting up a nationwide class, but he conceded that the way he defined it might make it apply in all 50 states.  The class, he said, will be all children covered by the ban if they were born after this past February 20.  The class will continue in existence until the case against the Trump order is fully tried and leads to a decision on its legality.

The judge delayed his order for seven days, to give the Trump Administration a brief interval to ask a higher court – a federal appeals court or the Supreme Court – to put the order on hold while the case continues in Judge LaPlante’s court and, later, during any future appeal.  The Trump Administration has already told the Supreme Court that, if the ban were blocked again, it would appeal.

Trump Administration lawyers had strongly opposed the use of the “class action” approach, saying there was no way of knowing what children might actually be affected by it until children were actually born.

When the Supreme Court issued its ruling on June 27, it did not take a position on whether the Trump ban was legal or constitutional, confining its decision to the question of what remedy was available in a case challenging the ban.  Judge LaPlante noted Thursday that the Supreme Court had delayed its ruling on the remedy issue for 30 days (running until July 27) so that it had time to draft a plan for enforcing the ban.

In making a temporary ruling that the ban is invalid, the judge said that even temporary loss of citizenship for a newborn child could have “devastating effects that would cut across a young child’s life (and the life of the child’s family), very likely leaving permanent scars.”

The ruling relied on an 1898 Supreme Court decision, in the case of United States v. Wong Kim Ark, which interpreted broadly the 14^th Amendment’s guarantee of “birthright citizen” as applying to any child born within the United States.  The judge noted that that old precedent has never been questioned by the Supreme Court, and never narrowed in scope.

President Trump, in an Executive Order issued when he took office in January, argued that the 14^th Amendment clause only protected children born to parents who owed some allegiance to this country’s government.  It is not enough, he contended, for a child simply to be born within the geographical limits of the nation.

He issued that decree as a part of his nationwide campaign to swiftly deport non-citizens.  Although he expressed concern about entry into the country of undesirable people, including those who had committed serious crimes, that campaign has swept much wider than that.  So far, the Supreme Court has imposed no barriers to how mass deportation has been carried out but also has not upheld the policy in any final ruling.