The Supreme Court Put Nationwide Injunctions to the Torch

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Yesterday, in a 6–3 decision in Trump v. Casa, the United States Supreme Court sided with the Trump administration in a case involving an executive order that purports to eliminate birthright citizenship.
Confusingly, the Court's decision wasn't about the constitutionality of the birthright-citizenship order. Instead, the case proceeded on the assumption that the order was unconstitutional. The only question for the justices was about remedy: What kind of relief should federal courts provide when a plaintiff successfully challenges a government policy?
The lower courts had, in several birthright-citizenship cases across the country, entered what are known as 'universal' or 'nationwide' injunctions. These injunctions prevented the executive order from applying to anyone, anywhere—even if they were not a party to the case. The Trump administration argued that nationwide injunctions were inappropriate and impermissible—injunctions should give relief only to the plaintiffs who brought the lawsuit, no one else.
In a majority opinion by Justice Amy Coney Barrett, the Supreme Court sided with the Trump administration and put nationwide injunctions to the torch. That's a big deal. Not only does it represent a major setback to the states and advocacy groups that brought the lawsuit, it also amounts to a revolution in the remedial practices of the lower federal courts.
[Nicholas Bagley: The birthright-citizenship case isn't really about birthright citizenship]
But it is not, as the dissenting Justice Ketanji Brown Jackson would have it, 'an existential threat to the rule of law.' It won't even mean the end of sweeping injunctions in the lower federal courts. To the contrary, the opinion suggests that relief tantamount to a nationwide injunction will still be available in many cases—including, in all likelihood, in the birthright-citizenship case itself.
Barrett's opinion for the Court begins and ends with history. In 1789, the first Congress gave the federal courts jurisdiction over 'all suits … in equity.' That conferral of authority allowed the courts to grant equitable remedies, one of which is the injunction. But that grant of power was not originally understood to give courts the power to enter injunctions extending beyond the parties to the suit—still less to cover the whole nation.
Instead, the courts hewed to a more traditional conception of judicial power. They sat to resolve disputes among parties, nothing more. That tradition held sway for more than 200 years. It only started to break down in the late 20th century as courts grew more comfortable with universal relief and became more concerned about executive overreach. By the time President Barack Obama took office, nationwide injunctions had become commonplace.
For Barrett, the novelty was enough on its own to condemn the practice. 'The universal injunction was conspicu­ously nonexistent for most of our Nation's history,' she wrote. 'Its ab­sence from 18th- and 19th-century equity practice settles the question of judicial authority.' The federal courts thus lack the power to issue nationwide injunctions. Period. Full stop.
In my book, that's a positive development. In 2020 testimony to the Judiciary Committee of the U.S. Senate, I argued that nationwide injunctions 'enable opportunistic behavior by politically motivated litigants and judges, short-circuit a process in which multiple judges address hard legal questions, and inhibit the federal government's ability to do its work. By inflating the judicial role, they also reinforce the sense that we ought to look to the courts for salvation from our political problems—a view that is difficult to square with basic principles of democratic self-governance.'
Although the Supreme Court divided along partisan lines, with the liberal justices dissenting, I don't see this as a partisan issue. (The outrageous illegality and sheer ugliness of President Donald Trump's executive order that lies underneath this fight may go some distance to explain why the three liberals dissented.) Nationwide injunctions are equal-opportunity offenders, thwarting Republican and Democratic initiatives alike. Today, it's Trump's birthright-citizenship order and USAID spending freezes. Yesterday it was mifepristone, the cancellation of student debt, and a COVID-vaccine mandate. Why should one federal judge—perhaps a very extreme judge, on either side—have the power to dictate government policy for the entire country? Good riddance.
Even as it ended nationwide injunctions, the Supreme Court left the door open for other forms of relief that are not nationwide injunctions—but that look a whole lot like them. That's good news for opponents of the birthright-citizenship order.
First, Barrett confirmed the equitable principle that the federal courts can award 'complete relief' to plaintiffs, even if that relief also incidentally protects third parties. She uses the example of a lawsuit in which 'one neighbor sues another for blasting loud music at all hours of the night.' An order that tells the noisy neighbor to stop would also help others on the block. That's totally okay.
Barrett even signals that the principle of complete relief might—might!—support an injunction that applies nationwide. The state plaintiffs, led by New Jersey, argued that they needed the order frozen across the whole country because people are mobile. If someone's citizenship blinks on and off depending on whether they entered a state that was or wasn't subject to a judicial injunction, states such as New Jersey would struggle to administer burdensome and confusing rules governing citizenship in their state programs.
The Court didn't say that the state plaintiffs were entitled to an injunction that covered the whole country. But it didn't rule it out either. Instead, the Court punted—'we decline to take up these arguments in the first instance'—and told the lower federal courts to resolve the question.
Second, Barrett clarified that parties who want expansive relief can still file a class action. Not every putative group of plaintiffs will be eligible to form a class: Under the Federal Rules of Civil Procedure, class actions are appropriate (and thus can be 'certified') only when certain conditions are met, including that class members are making very similar legal or factual claims. What's more, the Court has tightened those restrictions in recent decades.
But class actions will be available in a substantial number of cases challenging government action. That's certainly the case when it comes to the birthright-citizenship order, which harms hundreds of thousands of people in identical ways. The Court has also confirmed recently that class-wide injunctions can be secured even before a class is certified—which is to say, right at the outset of proceedings.
Third, the Supreme Court declined to take up the Trump administration's request to reconsider rules governing 'associational standing.' Those rules allow an association to sue on behalf of all of its members—even if the association has hundreds of thousands of such members. (One of the plaintiffs in the birthright-citizenship case, CASA, has more than 155,000 members.) The persistence of associational standing will give large membership organizations the ability to secure relief that extends very widely—so widely, in fact, that the administration may be left with no practical choice except to put its policy on hold across the whole country.
Fourth, and finally, the Supreme Court left open the possibility that nationwide relief would still be available in lawsuits that challenge government action under the Administrative Procedure Act. As I explained for this magazine two years ago, 'as nationwide injunctions get a bad odor, 'universal vacatur' under the APA is taking its place.' The APA wasn't at issue in the birthright-citizenship case, but it's central to the large majority of lawsuits that challenge government policy. If nationwide injunctions are dead, but universal vacatur is alive, then Trump v. CASA will only rarely make a difference on the ground.
All of which is to say that the end of nationwide injunctions is unlikely to usher in a new era of judicial minimalism and restraint. Nor will it massively curtail litigants' ability to protect their rights. That shouldn't be surprising. Nationwide injunctions are a symptom of a legal culture that affords judges a central role in American policy making. Without changing that legal culture, and the many different laws and doctrines that underwrite it, any single change—even one as significant as ending nationwide injunctions—will yield only a modest course correction.
[Amanda Frost: The question the Trump administration couldn't answer about birthright citizenship]
That's not to diminish the importance of Trump v. CASA. Ending nationwide injunctions will matter in some cases, some of the time. Perhaps most important, the case represents a stark rejection of a conception of the judiciary as a free-roving expositor of federal law. That may, in time, orient judges to a healthier understanding of their (limited) role in our constitutional system.
It would be easy to read Trump v. CASA as a victory for the defenders of the executive order ending birthright citizenship. I think that would be a mistake. On this, I agree with Samuel Bray, the University of Chicago law professor who led the academic attack on universal injunctions and whom Barrett cites in her opinion more than a dozen times: 'I do not expect the President's executive order on birthright citizenship will ever go into effect.'
Why? Because the flagrantly unconstitutional order is a prime candidate for expansive relief that is not a nationwide injunction. Barrett closed her opinion with an instruction that the lower courts 'move expeditiously' to rewrite their injunctions while keeping in mind the principle that injunctive relief typically provides plaintiffs with complete relief. That's one avenue for a broad injunction. She likewise clarified that the Court's decision would not take effect for 30 days, affording advocacy groups an opportunity to file class actions and seek immediate relief. That's another.
It's remotely possible that the birthright-citizenship order will take effect in some states and will affect some people after those 30 days. But I doubt it. Even if it does, I'd expect the Supreme Court to invalidate it in relatively short order. For all its breadth, Trump v. CASA won't meaningfully set back the fight to preserve birthright citizenship. It matters much more for what it says about federal judicial power—even if what it says is somewhat ambivalent.
Article originally published at The Atlantic