The Volokh Conspiracy
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A Bad Decision on Nationwide Injunctions
Today's Supreme Court ruling barring nationwide injunctions could empower the federal government to engage in large-scale violations of the Constitution. Exactly how bad the consequences will be depends on the extent to which other remedies can be used to forestall them.
Today's 6-3 Supreme Court decision in Trump v. Casa, Inc. barring nationwide injunctions is a grave mistake. It risks allowing the executive to engage in large-scale violations of constitutional rights, potentially in perpetuity. Exactly how bad it is depends on the extent to which other remedies might fill the gap left by the elimination of nationwide injunctions.
Universal injunctions are judicial orders that bar illegal conduct by the defendants with respect to everyone who might be victimized by it, not just the specific parties to the case. The majority opinion authored by Justice Amy Coney Barrett concludes that the "equity" jurisdiction created by the Judiciary Act of 1789 does not include universal injunctions or anything sufficiently analogous to allow them:
The Judiciary Act of 1789 endowed federal courts with jurisdiction over "all suits . . . in equity," §11, 1 Stat. 78, and still today, this statute "is what authorizes the federal
courts to issue equitable remedies," S. Bray & E. Sherwin, Remedies 442 (4th ed. 2024). Though flexible, this equitable authority is not freewheeling. We have held that the
statutory grant encompasses only those sorts of equitable remedies "traditionally accorded by courts of equity" at our country's inception. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999)….We must therefore ask whether universal injunctions are sufficiently "analogous" to the relief issued " 'by the High Court of Chancery in England at the time of the adoption of
the Constitution and the enactment of the original Judiciary Act.' " Grupo Mexicano, 527 U. S., at 318–319….The answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.
Equity offered a mechanism for the Crown "to secure justice where it would not be secured by the ordinary and existing processes of law." G. Adams, The Origin of English Equity, 16 Colum. L. Rev. 87, 91 (1916). This "judicial prerogative of the King" thus extended to "those causes which the ordinary judges were incapable of determining." 1 J. Pomeroy, Equity Jurisprudence §31, p. 27 (1881). Eventually, the Crown instituted the "practice of delegating the cases" that "came before" the judicial prerogative "to the chancellor for his sole decision." Id., §34, at 28. This "became the common mode of dealing with such controversies….Nor did founding-era courts of equity in the United States chart a different course…. If anything, the approach traditionally taken by federal courts cuts against the existence of such a sweeping remedy. Consider Scott v. Donald, where the plaintiff successfully challenged the constitutionality of a law on which state officials had relied to confiscate alcohol that the plaintiff kept for personal use. See 165 U. S. 107, 109 (1897) (statement of case); id., at 111–112 (opinion of the Court). Although the plaintiff sought an injunction barring enforcement of the law against both himself and anyone else "whose rights [were] infringed and threatened" by it, this Court permitted only a narrower decree between "the parties named as plaintiff and defendants in the bill."
The principal dissent by Justice Sotomayor argues at length that universal injunctions are, in fact, deeply rooted in history and closely analogous to Founding-era remedies, such as "bills of peace." I think she may have the better of the debate. But both sides make some good points, and this is a question I must leave to those with greater relevant expertise. In any event, I do not believe the case should turn on the resolution of this hypertechnical issue, but rather should be decided based on much more fundamental principles.
The real heart of the matter here is not the technical debate about historical analogies, but a core principle of constitutional government: the state must not be allowed to engage in large-scale systematic violations of the Constitution, especially when it comes to basic constitutional rights, like the birthright citizenship rights at issue in this case. And courts must be able to impose the remedies necessary to prevent that. That principle is vastly more important than any historical details about the exact nature of remedies available British courts in 1789.
It is particularly ironic that the majority allows British precedents about remedies to undercut this principle. America fought the Revolutionary War to be free of arbitrary government power of the sort often wielded by the British monarchy. And part of the purpose of having a written Constitution (as opposed to Britain's hodgepodge of traditions and potentially revocable statutory rights) is to impose binding constraints on government power that cannot be evaded.
Justice Sotomayor puts it well in this passage from her dissent:
The Court's decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals' constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.
In a separate dissent Justice Ketanji Brown Jackson makes some additional relevant points:
It is important to recognize that the Executive's bid to vanquish so-called "universal injunctions" is, at bottom, a request for this Court's permission to engage in unlawful
behavior. When the Government says "do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct," what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution - please allow this. That is some solicitation. With its ruling today, the majority largely grants the Government's wish. But, in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it.Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen,
courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law's protection become subject to the Executive's whims instead.
Later in her opinion she notes that this "zone of lawlessness" is likely to be particularly dangerous for victims of illegal action who are not well-positioned to bring lawsuits:
[T]he law-free zone that results from this Court's near elimination of universal injunctions is not an unfamiliar archetype. Also eerily echoing history's horrors is the fact that today's prerogative zone is unlikely to impact the public in a randomly distributed manner. Those in the good graces of the Executive have nothing to fear; the new prerogative that the Executive has to act unlawfully will not be exercised with respect to them. Those who accede to the Executive's demands, too, will be in the clear. The wealthy and the well connected will have little difficulty securing legal representation, going to court, and obtaining injunctive relief in their own name if the Executive violates their rights.
Consequently, the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular—i.e., those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive's whims.
I made similar points - much less eloquently - in an earlier post defending nationwide injunctions. As I noted there, the impact may be especially grave in situations where the government's illegal actions harm large numbers of people - in this case hundreds of thousands of children born every year, denied birthright citizenship, and thereby potentially subject to deportation. When the number of victims is that large, it is likely to be difficult or impossible for all of them to bring individual lawsuits.
The majority does leave open three potential paths for plaintiffs in this and other cases to secure broad relief. First, "complete relief" for parties to the case sometimes requires remedies that protect many others, too, especially in situations where policies affect people in interconnected ways. Second, victims can still file class actions. Whether that is possible will vary a lot from case to case, depending whether those harmed by an illegal policy in question can meet various class certification requirements.
Finally, state government plaintiffs can potentially secure broad remedies. As the majority recognizes, that might potentially involve not only a complete ban on the relevant illegal conduct with the plaintiff states' territory, but also a nationwide ban if that is the only way to prevent harm to the plaintiffs:
As the States see it, their harms—financial injuries and the administrative burdens flowing from citizen-dependent benefits programs—cannot be remedied without a blanket ban on the enforcement of the Executive Order…. Children often move across state lines or are born outside their parents' State of residence…. Given the cross-border flow, the States say, a "patchwork injunction" would prove unworkable, because it would require them to track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits.
The Court did not, however, rule on how broad a remedy the states are entitled to, or even address the issue of whether the states have standing to sue over this issue, at all. Those questions are - at least for the moment - left to the lower courts to determine.
The same goes for the underlying substantive issue of whether children of undocumented immigrants and those here on temporary visas are entitled to birthright citizenship under the Fourteenth Amendment. The majority did not resolve that issue, in large part because the Trump Administration (probably expecting to lose on it) did not ask them to do so.
Finally, Congress could potentially enact a new law authorizing nationwide injunctions. As I read it, the majority decision does not preclude this. It doesn't hold that nationwide injunctions are unconstitutional, but merely that they are not authorized by current law.
There is more to be said about the 119 pages of majority, concurring, and dissenting opinions. But this post is already very long, so I will stop for now.
In sum, today's decision is badly wrong, and could have terrible consequences. Exactly how terrible depends on the extent to which class actions, remedies for "complete relief" for the parties, and lawsuits brought by states, can fill the void left by the demise of nationwide injunctions.
UPDATE: I have made minor additions to this post.
