The Universal Injunction Cases, Part 4: The Court's Options

Previous posts have addressed the origin of universal injunctions and the arguments pro and con. (In listing scholarly articles on the question, I should have included George Rutherglen’s essay arguing that Rule 23 is where universal injunctions should be relocated.)

This post takes up the options available to the Court in the cases set for argument on Thursday. The Court has an unusually wide range of possibilities, since there is no question presented. My guess is that the Court will move to rein in universal injunctions—that is likely why the justices granted oral argument, so they can work out the proper rule and give the question the attention it requires—but I also expect that the Court will find a way to indicate that birthright citizenship is the long-settled rule in our constitutional system. That indication would prevent a misreading of the Court’s decision about the remedy and it would reduce the confusion caused by the unconstitutional executive order. I won’t speculate about the form such an indication would take, since a lot depends on how the Court decides the remedial question, what the extent of agreement is among the justices, and who is writing the opinion.

Instead of speculating about the Court’s options in the disposition of these three cases, I want to consider briefly (yeah, right, you’re thinking to yourself) what the Court’s options are on the universal-injunction question.

To begin, I expect that a number of questions will not be answered by the decision. These include APA vacatur (indeed, the birthright citizenship cases are a good vehicle in part because they leave that question to one side) and various issues involving, state standing, associational and organizational standing, and availability of nationwide class actions.

That narrows the question considerably, and it becomes whether universal injunctions are permitted, and if so under what conditions.

1. Strawmen

Let’s start by getting rid of a couple of strawmen.

One is the position that whenever a plaintiff successfully challenges a legal norm (whether statute, rule, or order), there should be a universal injunction against that norm’s enforcement. No one holds that position. For example, Amanda Frost has written a leading defense of national injunctions, and she says expressly: “This Article is a defense of nationwide injunctions, albeit a qualified one. Nationwide injunctions come with significant costs and should never be the default remedy in cases challenging federal executive action.”¹

Another strawman is the position that an injunction can never benefit third parties. No one holds that position. As Justice Jackson has written, “even the most ardent critics of ‘universal injunctions’ acknowledge that, in providing relief to the parties before a court, an injunction may incidentally benefit nonparties.”²

2. Moving to the middle?

So what is in between these two strawmen? The scholarship on both sides has staked out nuanced positions. On the pro universal injunction side, scholars like Amanda Frost and Mila Sohoni have recognized that there are policy problems created by universal injunctions, and they don’t think they should be given in every case. Frost, for example, suggests a cost-benefit analysis, which she summarizes this way:

Although federal courts have the constitutional authority to issue nationwide injunctions, such broad injunctions are not justified in every case. Nationwide injunctions come with both costs and benefits that courts should consider carefully before issuing them. Such injunctions are an appropriate remedy in three categories of cases: when they are the only method of providing the plaintiff with complete relief; when they are the only means of preventing irreparable injury to individuals similarly situated to plaintiffs; and when they are the only practical remedy because a more limited injunction would be chaotic to administer and would impose significant costs on the courts or others. In cases in which nationwide injunctions can serve one or more of these goals, the benefits of such an injunction may outweigh the costs.³

A few points of agreement and disagreement:

1. I agree that a court may need to give a broad injunction affecting third parties in order to give the plaintiff complete relief. I would not, however, call that a “national” or “universal” injunction because it is not broader than needed for the parties. More substantively, it’s important to note that there is no traditional principle of equity that says courts must give complete relief—in fact, many equitable doctrines teach that courts will often not give complete relief (e.g., equitable defenses, the balance of equities, concern about the managerial burden on the court, concern about the injunction’s enforceability, equitable ripeness, and the public interest). This point often gets lost with citations to Califano—to say what a court may do to grant complete relief to a party is not to say what a court must do. (See the footnote for Judge Stras’s trenchant analysis of Califano—a case often misunderstood in the debates about the universal injunction.⁴)

2. I disagree that irreparable injury to similarly situated non-parties is a sufficient reason to give a universal injunction. This is an exception that swallows the rule. The reference to “similarly situated” is a homage to the bill of peace, but I would consider that a rhetorical flourish. Similarly situated parties should be represented by a named plaintiff in one of the ways authorized by the Federal Rules of Civil Procedure (as the current instantiation of the traditional equitable group litigation possibilities—see Taylor v. Sturgell), or else their being similarly situated is not relevant to the court’s dispute-resolution function.

3. I agree that courts should consider the administrability of an injunction, and in theory that could result in an injunction that overshoots or undershoots the plaintiff’s exact right. That’s exactly the sort of thing that equity does consider. But two cautionary notes. One is that administrability concerns in equity tend to be a reason for courts to decline to act, leaving the plaintiff to any available legal remedies. There is no equitable maxim “Equity likes to go big or go home.” And the other is that courts are simply assuming logistical difficulties and giving up too quickly. (See, e.g., my discussion of the Easyriders case in Multiple Chancellors.) Given the important interests at stake—the epistemic, democratic, and judicial-role arguments in the previous post—courts should not be stopping quickly in the search for narrower injunctions.

In the end, I don’t think the pro-universal-injunction position, even with this kind of cost-benefit analysis, has a stable equilibrium anywhere much short of “always give a universal injunction.” The analysis itself has capacious categories about harm to non-parties (Frost’s second justification), and it will almost always be more efficient to scale up the injunction to everyone (Frost’s third justification). Admittedly, Frost still says these benefits have to be balanced against the costs. But we are not dealing with commensurable elements in the analysis. For example, how do you weigh the epistemic effects of reduced percolation against the reduction of harm to non-parties?

Moreover, whatever the possibility of a restrained cost-benefit analysis might be in the abstract, it doesn’t work in a world of heightened judicial polarization, aggressive forum-shopping, and preliminary injunctions that are dominated by the judge’s prediction of the merits. The proof is in the failure of the lower courts to self-regulate—though admittedly, much of that failure can be attributed to entrenched circuit precedent in a few circuits.

3. Nuancing the no-national-injunction rule

My view is that there should be no national injunctions. But just like the pro-universal-injunction position, that rule comes with qualifications and caveats. In fact, I think there are six:

1. Complete relief: Sometimes, in order to give a remedy to the plaintiff, a court has to give relief that benefits nonparties. If A is burning vast piles of trash, and neighbor B sues to get an injunction stopping the nuisance, that injunction will benefit all the neighbors, whether they are parties or not. This has long been accepted in equity. However, invoking “complete relief” does not usually justify a broad injunction in challenges to government action. For example, money could be paid to some USAID funding recipients without paying money to others; in the cases before the Court, an injunction could protect some plaintiffs from executive action related to birthright citizenship (whether individual plaintiffs individually, states qua states with respect to their proprietary interests, or associational plaintiffs for their members) without protecting anyone else. When there are cases in which a universal injunction is the only way to protect the plaintiff from injury, it often turns out that there should be no injunction at all. That could be because there is a serious disproportion between the plaintiff’s meager claimed injury and the broad remedy sought (e.g., the DACA case, where Texas alleged additional spending on drivers’ licenses; or the initial case in what eventually became Trump v. Hawaii, where Washington alleged a reduction in sales tax receipts), or it could be that a highly attenuated standing claim of the plaintiff is why the remedy has to be really broad to have any effect (e.g., FDA v. Alliance for Hippocratic Medicine). A request for a remedy beyond the plaintiff can be a warning light for either of those problems—disproportionate relief, or attenuated standing.

2. Representative suits: When a court gives a remedy to a “plaintiff,” that may be a named plaintiff and those who are represented by the plaintiff. This too is a longstanding principle in equity. Note that I would not call this kind of broad injunction for a class, even a nationwide class, a “universal injunction” or “national injunction” because to me it is definitional that those injunctions go beyond what is needed to protect the plaintiffs and those represented by the plaintiffs.

3. In rem suits: In rem suits have a different logic and different limiting principles. In such cases, the remedy the court gives may decide the fate of the res as to everyone. To me, this is where equity’s cancellation remedies fit, whether it’s cancellation of a contract or cancellation of a patent.

4. Mandamus: Mandamus, too, has a different logic and different limiting principles. It is not focused on the protection of the plaintiff; it is instead focused on the duty of the officer, and it is the ministerial quality of the duty that supplies an important limit. And mandamus is not equitable, but rather is a prerogative writ. (I discuss in The System of Equitable Remedies why the managerial powers and limits of equity do not apply to prerogative writs like mandamus and habeas, and one should probably put the declaratory judgment here too.)

5. Congress’s case-definition power: Congress has power to regulate the jurisdiction of the federal courts, and its horizontal Necessary and Proper Clause power provides further support for legislation that enables the judiciary’s performance of its duties. One aspect of that, discussed in my previous post, is Congress’s power to define what counts as a “case” (think of bankruptcy statutes, MDL, and some provisions setting up single-shot review of agency action). In my view, there is a clear statement rule—Congress has to speak clearly to alter the default rules. And there are some not very well defined constitutional limits to this, beyond which the courts are not acting like courts (e.g., Muskrat).

6. Jurisdiction-preservation: Federal courts have the inherent power, affirmed in the All Writs Act, to issue writs in aid of their jurisdiction. That may require a court to act quickly before it fully knows the shape of the case, as when a TRO holds things in place so the court can decide whether it is appropriate to certify a class. In such an instance, there may not be a class yet (compare the Court’s reference a couple weeks ago to a “putative class” in one of its orders). That’s not a problem. It is the case itself, the arriving and just coming into view case, that warrants the exercise of the jurisdiction-preserving power. Of course, courts should be restrained in the exercise of that power, tailoring their writs to the scope of the case to the degree possible, and updating them as the shape of the case becomes more clear.

As a terminological matter, I would not say these six categories are universal or national injunctions (and of course some of them, like mandamus, aren’t injunctions at all). They don’t go beyond what, in the nature of the case, is needed to protect the plaintiffs (or the in the case of category 6, preserving the court’s ability to protect the plaintiffs).

Note that the point about complete relief being permissive and not mandatory is very important, and this is where a lot of the practical difference is between the nuanced pro and con positions on universal injunctions. If we start with a rule that the court has to protect the plaintiff no matter what, or something close to that, then equity will always be “leveling up” and finding administrability concerns and other reasons to go broad. It is true that equity is marked by remedial creativity and concern for substance rather than form, and that’s good (e.g., Spur Industries). But a zero-tolerance approach to violations is simply not characteristic of equity. Adopting that mindset skews the analysis. Specifically, it makes “complete relief” into a short road to universal injunctions.

I suspect that if the Court does end universal injunctions, it will make clear that it is adopting some or all of these qualifications. But I also expect that the Court would not want to start answering the inevitable questions about the scope and content of these exceptions. For the last ten years, challengers to the federal government have sought out circuits that have endorsed universal injunctions. The district and appellate courts need to consider the questions raised by these qualifications in a world without universal injunctions. Here, too, percolation matters.

1. Amanda Frost, In Defense of Nationwide Injunctions , 93 N.Y.U. L. Rev. 1065, 1069 (2018).

2. Labrador v. Poe by & through Poe, 144 S. Ct. 921, 936 n.3 (2024) (Jackson, J., dissenting from the grant of stay) (citing United States v. Texas, 599 U.S. 670, 693, 143 S.Ct. 1964 (2023) (Gorsuch, J., concurring in judgment); Trump v. Hawaii, 585 U.S. 667, 717 (2018) (Thomas, J., concurring)).

3. Frost, 93 N.Y.U. L. Rev. at 1090.

4. See Rodgers v. Bryant, 942 F.3d 451, 467 (8th Cir. 2019) (Stras, J., concurring in part and dissenting in part):

The court relies on a different “principle” from Califano: “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” 442 U.S. at 702, 99 S.Ct. 2545. Out of context, as the court presents it, this statement seems to support the position that “injunctive relief should extend statewide because the violation established ... impacts the entire state of Arkansas.” Ante at 458. In context, however, its meaning is different.

The line in question comes from Califano’s discussion of whether to reject a class of Social Security beneficiaries from across the country on the ground that a nationwide class action would lead to overly burdensome injunctive relief. See 442 U.S. at 689, 701–02, 99 S.Ct. 2545. Without ever questioning the premise that injunctive relief should go no further “than necessary to redress the complaining parties,” the Supreme Court explained that there was no need to worry, because a nationwide class would still need to show nationwide harm before it could receive nationwide relief. Id. at 702, 99 S.Ct. 2545. In other words, when Califano linked “the scope of injunctive relief” to “the extent of the violation,” the point was that the injunction could be narrower than “the geographical extent of the plaintiff class,” not broader. Id. Relying on that line to justify granting a universal injunction to Rodgers and Dilbeck, who have not even tried to certify a class of any size, turns Califano on its head. It also ignores the very next paragraph of the opinion, which instructed district courts to “take care” to certify nationwide classes only when “nationwide relief is indeed appropriate.” Id. That advice would make little sense if nationwide relief in the form of a universal injunction were generally available to any plaintiff who established a broad enough violation, regardless of the size, or even the existence, of a class.