The Universal Injunction Cases, Part 2: The Arguments *For* Universal Injunctions

In anticipation of oral argument on May 15 in the universal injunction cases, I’m writing a few posts that offer a guided tour through the main contested points. My previous post considered the name for these injunctions and the scholarly debate about their origin. This post will sketch what I consider the best arguments in favor of universal injunctions, as well as noting their vulnerabilities.

If you’d like to delve more into these arguments, there are lots of terrific articles, and the literature in support of universal injunctions (in various ways and to various degrees) includes work by Payvand Ahdout, Spencer Amdur and David Hausman, Zach Clopton, Amanda Frost, Suzette Malveaux, Portia Pedro, Doug Rendleman, Mila Sohoni, Alan Trammell, and Ezra Young. Key early pieces by Zayn Siddique and Getzel Berger also cover some of the arguments in favor of universal injunctions.

One more preliminary note: Some observers will think about universal injunctions entirely through the lens of the particular cases the Supreme Court is considering, or entirely through the lens of injunctions against the Trump administration. That will not be my tack here. The larger question—and the one that will draw the most attention from the Court—is whether universal injunctions are legally authorized and normatively desirable as a general matter. However the Court answers that larger question, the answer should be the same no matter who is president. Rules that work across the board, not just in one case or for one litigant, are a critical element of the rule of law.

1. The equality argument

One argument for universal injunctions tends to resonate more than any other with the person on the street. It’s the intuition that everyone should be treated equally. If the government can’t enforce a legal norm (whether statute, rule, or executive order) against one person, it shouldn’t be able to enforce it against another person.

The premise, of course, is that the reason the government can’t enforce the norm against the plaintiff is a generally applicable reason. But assuming that there is a generally applicable reason that enforcement would be illegal or unconstitutional, then equal treatment would seem to require the same rule for everyone. After all, didn’t I just say above that rules that work across the board, not just for one person, are a critical element of the rule of law?

This could be put in constitutional argot by riffing on Yick Wo: the equal protection of the laws is a pledge of equal laws’ equal enforcement. Or it can be put in a more general register of equal regard, as a principle underlying many different constitutional provisions, from the Bill of Attainder Clause to the Equal Protection Clause to the Free Speech Clause to the Establishment Clause to the Takings Clause. Whatever the exact basis may be, the point is that the legal system should treat A and B the same unless there is a relevant difference, and if the reason for an injunction protecting A is also a reason for an injunction to protect B, then equal treatment requires a broader injunction that would protect them both.

2. The efficiency argument

The efficiency argument for universal injunctions is that the legal process is long and arduous, and if we have to wait for it to conclude before someone is protected from an unconstitutional or illegal action, that will be too little, too late. In fact, something like this impulse already has a place in our doctrine: we allow temporary restraining orders and preliminary injunctions precisely because there are situations where if the court fails to act now—even though the case hasn’t been decided yet—the court’s later decision will be pointless or at least relatively ineffective. (You can read more about this rationale for preliminary injunctions here.)

We can break this efficiency argument down into two arguments. One is that a single case is more efficient than a lot of cases. The other is an administrability concern about demarcating the edge of an injunction. If an injunction protects a class or an associational plaintiff from enforcement, then that puts pressure on figuring out exactly who is inside the boundary. If the court says the legal norm can’t be enforced against anyone, we don’t have that demarcation problem. This concern animated the universal injunction in the Easyriders Freedom F.I.G.H.T. case (discussed in Multiple Chancellors at pp. 478-479).

3. The executive-overreach argument

Another argument for universal injunctions is executive overreach. This argument has additional punch right now, given two facts.

One is the unusually large quantity of executive orders in the second Trump Administration. In our constitutional system, the executive has no power to make, suspend, or dispense with compliance with laws. As Chief Justice Marshall put it in Wayman v. Southard, “The difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the law . . . .” (What fills in the ellipsis, about the difficulty of drawing the lines, is important, but not my point here.) Thus the executive is supposed to carry out the law, not make it, but that is not a very good description of the current environment, and it is clear that over the last 100 days the engine of policymaking has not been Congress.

The other fact is that an unusually large number of President Trump’s executive orders are flagrantly unconstitutional. I have in mind especially the attacks on law firms and universities that incur the displeasure of the President, the orders purporting to suspend federal statutes, and the order purporting to end birthright citizenship. To be sure, a number of other executive orders he has issued and actions he has taken are constitutional.

Executive assertion of what is effectively lawmaking power is not new in 2025. It has been an increasing feature of our constitutional system for reasons that run beyond this post, reasons that relate to executive assertiveness, congressional abdication, and a line of judicial decisions that limit Congress’s ability to control executive action (e.g., not just removal cases, but also Chadha). Such assertion has also been characteristic of the preceding two Democratic administrations (e.g., “deferred action” under President Obama, and President Biden’s student loan forgiveness programs). And regulators know they can force an industry change with a rule, eventually lose a few court cases, and still have won the war (see p. 477 and n. 334 in Multiple Chancellors).

Whatever the exact causal story, the executive branch now has vastly more power than the Founders would have imagined, but not only that, vastly more power than the Constitution establishes. And so this argument for universal injunctions is simple: the executive branch is not staying in its lane, and so the courts don’t have to either. Now it isn’t always put so starkly. We could talk about compensating adjustments or hydraulic necessities. But the point is the same: in separation of powers, turnabout is fair play. Thus, the universal injunction is a commensurate response to executive overreach.

4. The rights-protection argument

One more argument for universal injunctions should be noted, and this one is about constitutional rights. It pulls together the three preceding arguments and connects them to the rights at stake. There’s an old legal adage that where there’s a right, there’s a remedy. It doesn’t take very long in law school before you realize it’s not true, at least not literally. Many rights, more precisely all rights, go underenforced, for a myriad of reasons. But the adage is still aspirationally (and perhaps directionally) true: if we care about a right, then we care not just about highfalutin words and eloquent promises, but also about the concrete realization of the right in the world.

If we care about a constitutional right, then we need to protect it. A universal injunction gets us closer to doing that. And to make this argument resonate with you, dear reader, think about whatever rights are most important to you—pick your right. Would you want that right protected with plaintiff-specific injunctions that allow the government to trample on the right with respect to everyone who is unable, for whatever reason, to sue?

This, then, is what’s at stake with the preceding arguments: equality with respect to constitutional (and other legal) rights, efficient protection of those rights, and protection of those rights against executive overreach (whether Democratic or Republican).

5. Vulnerabilities

To round out this post, here are a few skeptical observations. These four arguments have been around for a while—they are all addressed in the objections section of Multiple Chancellors (pp. 473-481). I won’t repeat all the points there, but briefly:

The equality argument has two points of vulnerability.

First, our legal system gets to an equal rule (or is supposed to anyway), but it happens eventually, not all at once as soon as there’s a single district court decision. Indeed, this was one aspect of the nonacquiescence debate in the 1980s (e.g., Estreicher and Revesz).

Second, equal treatment always means treating people equally where there are no relevant differences, with “relevant” being the location of all the analytical hard work. But there is a relevant difference between A, a person who challenges the enforcement of a legal norm, and B, a person who doesn’t. A chose to sue. The same difference can be seen at work in a suit for damages. If A and B are both subject to some kind of rights violation by a government official, and A sues and recovers $100,000 in damages, can the court also require the payment of damages to B for the identical violation? No, because there is a relevant difference: A sued and B did not.

The efficiency argument goes to a tradeoff in our system of adjudication. The system is set up for slow, deliberative litigation—develop a record, work the case through the pretrial and trial process, consider it on appeal, and have the Supreme Court resolve a circuit split. It isn’t set up for insta-decisions and emergency appeals. Most of the universal injunctions in the last decade have been preliminary injunctions—and as the Court emphasized earlier this term in Lackey v. Stinnie, these aren’t decisions on the merits. So the whole edifice of universal injunctions stopping action by the executive (whether Obama, Trump, Biden, or Trump) rests not on trials or well developed records or even merits decisions at all, but mostly just on predictions about the merits. And when those predictions are combined with heightened judicial polarization¹ and aggressive forum-shopping²—well, we can’t have very much confidence that the answer the universal injunctions are getting us to so quickly and efficiently is really the right answer. Sometimes it is, but sometimes it isn’t the right answer at all (e.g., standing analysis in the district court in FDA v. Alliance for Hippocratic Medicine). And that then means that national policy is oscillating back and forth as universal injunctions get turned on and turned off. That oscillation is a choice of “flips” over “splits” to use the terminology in an excellent article by Dan Hemel—and flips are usually the wrong choice from a policy perspective.

The executive overreach argument has a lot of force, I’ll admit; the force seems to grow by the day. But I am deeply wary of making large structural adjustments in the role of any branch just to correct aggrandizement by another branch. I would much rather correct the overreach by the executive, and this can be done without having the judiciary overstep its own role. Admittedly, Congress needs to reassert itself.

Nevertheless, underlying this point is something more fundamental than just variations in taste for compensating judgments: what exactly is the judicial role? I will take this up more in the next post, but the basic division is between (in Hart & Wechsler terms) the dispute-resolution model and the law-declaration model. The dispute-resolution model is, in my view, the core of the judicial function, and no amount of executive (or legislative overreach) should turn the courts away from it. As the Court said in Gill v. Whitford: “The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it. . . . A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”³

Moreover, there is also a strong argument for the judiciary being especially scrupulous to stick to the dispute-resolution model in times of aggressive executive overreach. Here’s the way I put it in a previous post:

In a leading study of courts, Martin Shapiro called the dispute-resolution function “the basic social logic of courts” and the “most basic source of [their] legitimacy.”³ It’s always worth respecting that logic and source of legitimacy. But it’s especially important now, as the federal courts confront new challenges from an increasingly emboldened executive branch. If the forecast is famine, hold on to your seed corn.

(The supporting footnote reads: Martin Shapiro, Courts: A Comparative and Political Analysis 36, 56 (1981). See also Robert Post, The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925(SSRN Draft of December 29, 2024).)

Finally, the rights-protection argument is attractive, but it misconceives how our legal system protects constitutional rights. The full protection of a constitutional right for everyone everywhere is not the responsibility, or even within the power, of the first judge who gets his or her hands on a case. The judicial power is a mediated, distributed power. It was so as as soon as we had the establishment of lower federal courts—and even before that, really, because state courts could hear cases involving federal constitutional rights. Moreover, the rights-protection argument would prove too much, providing a reason to get rid of standing, ripeness, the requirement that a plaintiff have a cause of action or equitable jurisdiction, and so many aspects of the law of remedies (from the requirement of mitigation of damages to the offsetting-benefits rule to the economic-loss rule to the requirement of reasonable certainty to unclean hands to laches). All of these doctrines buffer the right from its ultimate vindication.

The bottom line is that these four arguments suggest a normative vision for how we could protect rights and how we could design an adjudicative system. But there are reasonable questions about how well that vision fits the bulk of our legal practice and the system we have under the Constitution. A lot of how you answer those questions will inevitably depend on whether you start with a dispute-resolution model or a law-declaration model for the federal courts.

1. See Adam Bonica & Maya Sen, Estimating Judicial Ideology, 35 J. Econ. Persps. 97, 112–15 (2021).

2. See Scott Dodson, The Culture of Forum Shopping in the United States, Compendium on Comparative Procedural Law and Justice (forthcoming 2025); District Court Reform: Nationwide Injunctions, 137 Harv. L. Rev. 1701, 1710.

3. In a similar vein, compare Haaland v. Brackeen, which says: “It is a federal court's judgment, not its opinion, that remedies an injury . . . .” That is a distinction between the court’s resolution of the parties’ dispute (the judgment) and the court’s statement of its reasons, reasons that may run well beyond the parties and state a more general principle (the opinion). What “remedies an injury” is the judgment, the court’s resolution of the dispute of the parties.