The Universal Injunction Cases, Part 3: The Arguments *Against* Universal Injunctions

In the run-up to oral arguments this week at the Supreme Court, this series of posts works through the main points in the debate over universal injunctions. Part 1 considered the debate over the origin of universal (or “national” or “nationwide”) injunctions, while Part 2 covered the arguments in favor of them. This post sketches the arguments against universal injunctions.

The literature analyzing these critical arguments is ample. With variations in the arguments and the intensity of the critique, notable work includes articles by Ronald Cass, Dan Hemel, Gary Lawson, Michael Morley, Howard Wasserman, my Multiple Chancellors article, a coauthored article with Will Baude, and a coauthored brief with Nick Bagley. You can read my testimony on the question from 2017, 2020, 2021, and 2025. And although not offering a critique of the universal injunction per se, Monica Haymond explores the lack of fit between intervention doctrine and values and the current practice of the universal injunction.

I should also highlight judicial opinions critiquing universal injunctions by Justices Thomas,¹ Alito,² Gorsuch,³ and Kavanaugh⁴ and Judges Bress,⁵ Grant,⁶ Manion,⁷ Stras,⁸ Sutton,⁹ and Wilkinson.¹⁰

So what are the best arguments against the universal injunction? I think there are four: (1) it’s an end run around our ordinary practice, (2) it has highly negative effects on the decisionmaking and functioning of the judiciary, (3) it systematically thwarts the democratic process, and (4) it is inconsistent with the traditional judicial role of the federal courts.

1. The end-run argument

National injunctions do not fit a lot of aspects of our law. I will just tick off a number of examples instead of working through these in detail:

• Judicial structure: we have many district court and circuit court judges. This structure of distributed decisionmaking is inconsistent with the-first-judge-who-gets-a-question-can-decide-for-everyone.

• Class actions: a universal injunction gives the benefit of a nationwide class without the plaintiff having to meet the requirements of a class action—and a class “opt-out” does not exist for a universal injunction.

• Preclusion: United States v. Mendoza says there is no offensive nonmutual collateral estoppel against the federal government, but a national injunction is the functional equivalent.

• Contempt: a party who gets an injunction can enforce it with contempt, but what about a non-party who is protected by a universal injunction?

• Precedent: a district court’s decision is not binding precedent even within the same district court, but a district court’s universal injunction can effectively overrule even the holding of an appellate court in a different circuit.

• Symmetry: a plaintiff can win or lose, but the judgment in either direction is binding vis-a-vis the plaintiff and the defendant. That symmetry is respected by a class action (the whole class wins or loses), but it is strikingly absent for a universal injunction.

• Virtual representation: the Court rejected a doctrine of virtual representation in Taylor v. Sturgell, but a universal injunction allows its functional equivalent.

2. The epistemic argument

The federal courts are accustomed to act deliberately and methodically, and it is how they do their best work. But in the past decade the federal courts have reached a new equilibrium. Regardless of who is president, as soon as there is an important executive action, there will be a legal challenge in which plaintiffs seek a national injunction, and then district courts will decide major national issues with preliminary injunctions based on a prediction of the merits, and then courts of appeals and the Supreme Court will decide major national issues based on a request for a stay of those preliminary injunctions. We have become so accustomed to this over the last decade that it’s hard to remember that this wasn’t the usual practice for the first 225 years of the United States. In these cases, no one has actually decided the merits at all—much less several courts in different circuits—but the Court is routinely forced to show its hand anyway on hugely important questions.¹¹ If you are thinking about the preconditions for epistemic success, it’s hard not to look with horror at this becoming the accustomed practice for the federal courts.

Not all of this is the fault of the scope of the injunctions. It is the combination of (1) universal injunctions, (2) preliminary injunctions that are increasingly dominated by the merits, (3) heightened judicial polarization, (4) aggressive forum-shopping, and (5) broad state standing since Massachusetts v. EPA. That combination has helped drive the explosion of the emergency docket. It also overpowers any notion that judges should be able to give universal injunctions as long as they show just a bit more restraint—these structural forces make appeals to restraint naive.

3. The democracy argument

It would be one thing if universal injunctions were simply getting us very quickly to the same place the courts would eventually land. But in a considerable number of cases, these universal injunctions do not hold up on appeal (e.g., Trump v. Hawaii, FDA v. Alliance for Hippocratic Medicine, National Association of Diversity Officers in Higher Education v. Trump). In the meantime, we have become accustomed to a near-automatic block on any action by the political branches. This is not democratic government. And it’s not consistent with the Constitution, which has no Council of Revision in which judges must pass on the legality and constitutionality of any action before it goes into effect.

Nothing about the argument I am making is specific to the current administration, for universal injunctions have had this chokehold on legislative and executive action for about a decade. Here is one paragraph from Multiple Chancellors describing the actions thwarted by universal injunctions in the last year of the Obama administration:

Texas v. United States was not a unique challenge to the policies of the Obama Administration. In 2016, a district court judge issued a national preliminary injunction against a major Department of Labor regulation, the “persuader rule.”241 Another issued a national preliminary injunction regarding a “Dear Colleague” letter from the Department of Education about the statutory term “sex” and public school restrooms.242 Another issued a preliminary injunction against enforcement of a regulation requiring federal contractors to report labor violations.243 Another issued a national preliminary injunction against the enforcement of a Department of Labor regulation that would have made about four million workers eligible for overtime pay.244 Still another issued a national preliminary injunction against a rule interpreting an antidiscrimination provision in the Affordable Care Act (ACA).245 These national injunctions were all issued against a Democratic administration by federal district court judges in Texas.246

Nor does anything about this argument turn on the wisdom of the policies of Presidents Obama, Biden, or Trump. Democracy is not a system of government in which the people get to decide as long as they make good decisions. “Democracy,” H. L. Mencken said, “is the theory that the common people know what they want, and deserve to get it good and hard.” That democratic process is thwarted by the universal injunction.

The obvious rebuttal is that democracy requires the rule of law, including adherence to the Constitution, by all who wield governmental power. I wholeheartedly agree, and think the courts are a critical protection of constitutional liberties. That is always true, but it is especially true when there are rising threats to those liberties. But that proposition does not justify the current combination of universal injunctions + judicial polarization + forum-shopping. Such a combination produces no assurance at all that a court issuing a universal injunction has very good odds of ultimately being “right” in the way our system tests rightness (affirmance on appeal). Rights protection under our Constitution does not fit the theory or practice of the universal injunction (a theme explored in my previous post).

I am not saying that universal injunctions are the only challenge to our democratic system. They are not. But they are a challenge that is squarely within the power of the federal courts to control.

4. The judicial-role argument

The last argument against the universal injunction is the one that I consider the most important: they are inconsistent with the traditional judicial role. In a canonical passage, the Hart & Wechsler casebook distinguishes two models of federal courts, the dispute-resolution model and the law declaration model. I will quote from the new eighth edition (2025):¹²

Chief Justice Marshall’s opinion in Marbury treats the law declaration power as incidental to the resolution of a concrete dispute occasioned by Marbury’s claim to a “private right” to take possession of the office. Marshall emphasizes this recurrent theme, moreover, in ways that seem obviously calculated to make two aspects of his decision more palatable: first, the assertion of judicial authority to grant affirmative relief against a senior political officer of the executive branch; and, second, the claimed authority to invalidate an Act of Congress. The Court, in Marshall’s view, had the authority to impose in those ways on the coordinate branches because doing so was an unavoidable consequence of its obligations to adjudication Marbury’s claim of right. . . .

Marshall’s discussion of the authority to engage in judicial review similarly assumed that the Court had no choice but to interpret and apply the Constitution when presented with a proper case requiring decision. Hence, in deeming it “emphatically the province and duty of the judicial department to say what the law is,” Marshall took pains to elaborate in the very next sentence that “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.”

This “dispute resolution” model—under which the Court treats its law declaration power as incidental to its responsibility to resolve concrete disputes—recurs in several related aspects of the Court’s justiciability case law. First, to avoid intrusion upon the prerogatives of the other branches, leading cases affirm that courts should eschew any rule as a general overseer of government conduct; that is, the federal judiciary’s function is not to vindicate abstract interests in the government’s compliance with the rule of law. [Citations to FEC v. Akins and Lujan v. Defenders of Wildlife.] Second, justiciable “cases” should be restricted to disputes in which a defendant’s violation of a legal duty has caused a distinct and palpable injury to a concrete, legally protected interest of the plaintiff. [Citation to Allen v. Wright and Warth v. Seldin.]

The casebook goes on to offer as an alternative the law-declaration model, and it notes the ways the models overlap and our current practice is some of both. I will concede various aspects of our practice are aberrational on this account of the judicial role (as discussed below).

Nevertheless, I think the dispute-resolution model is essentially right about what the federal courts are set up to do. The resolution of the disputes for the parties is the traditional judicial role. In the words of Martin Shapiro, dispute resolution is “the basic social logic of courts” and the “most basic source of [their] legitimacy.”¹³

This, I think, is the core question at the heart of the universal injunction debate. If you start with a dispute-resolution model, universal injunctions are impossible to justify. If you start with a law-declaration model—in which the federal courts “have a special function of enforcing the rule of law, independent of the task of resolving concrete disputes over individual rights”¹⁴—then it’s a glide path to universal injunctions. Each conclusion is just baked into one’s premises about the proper judicial role.¹⁵

On my view, then, the two aspects listed in Hart & Wechsler could be supplemented with one more: Third, a court should grant a remedy that fits the case, redressing the injury of a successful plaintiff but not the injuries of non-parties. See, e.g., Frothingham v. Mellon, Doran v. Salem Inn, Inc., Martin v. Wilks, Lewis v. Casey, and Gill v. Whitford.

Note that this proposition draws strength from both aspects of our practice enumerated in Hart & Wechsler: rejecting universal injunctions avoids the vindication of abstract interests, and it matches the remedy to the “distinct and palpable injury” of the plaintiff (i.e., the redressability part of the standing analysis).¹⁶

Three caveats and qualifications about the judicial-role argument:

1. The dispute-resolution model rests on both constitutional and non-constitutional sources. I am comfortable locating it in Article III, which is why I think the universal injunction is an exercise of judicial power that goes beyond the constitutional role of the federal courts. But the argument does not depend on any constitutional basis. The traditional judicial role can be a “backdrop” (to use Stephen E. Sachs’s terminology). That is consistent with how the Court has treated various aspects of equitable practice as enduring unless Congress speaks clearly to change them (e.g., Porter v. Warner Holding Co., Weinberger v. Romero-Barcelo, Nken v. Holder). Dispute resolution, in other words, is at least the default mode of the federal courts. And universal injunctions cannot be squared with that default mode.

2. I grant that Congress has considerable power to shape the definition of the “dispute” the courts resolve. I would not consider that power unlimited (just like, e.g., Congress does not have unlimited power to determine injury for purposes of standing, and its power to alter the rules of contempt enforcement is not unlimited). But its dispute-definition or case-shaping authority is still substantial. The various kinds of representative suits permitted by the Federal Rules (relying on the Rules Enabling Act) can be seen as ways of defining what counts as a case. And statutes that consolidate challenges to an agency rulemaking in the D. C. Circuit can be seen in the same light. Allowing a substantial degree of congressional power to define a case is consistent with the dispute-resolution model.

3. In the dispute-resolution model, as long as there is vertical precedent, the Supreme Court still decides questions for the entire federal judiciary. Universal injunctions are inconsistent with the traditional judicial role at every level of the federal judiciary, including the Supreme Court. But there is a sense in which the point is academic for the Supreme Court. It does not need universal injunctions; its holdings already have universal effect as precedent for other federal and state courts. If the Supreme Court eliminates the universal injunction, it will be resetting the remedial practices of the lower federal courts, but it will not be restraining its own decisional authority in any substantial sense.

5. Vulnerabilities

In my previous post, after stating the best arguments for universal injunctions, I stated some of the weaknesses of those arguments. It’s only fair to do the same here. So what are the weak points in the arguments I’ve just given?

The end-run argument depends on how stable or attractive the practices are that are being circumvented. Because if they aren’t good and need to be supplemented, well, maybe the “end run” is just like the path between the sidewalks that everyone walks on because it’s the more efficient way to get from A to B. In other words, end runs can be legal development.

Accordingly, supporters of the universal injunction will emphasize the strictures on class actions (this is a point Steve Vladeck made in his recent testimony before the Senate Judiciary Committee). And on preclusion, my argument rests on United States v. Mendoza (and older practice before Parklane Hosiery). But Mendoza is an exception to the twentieth-century trend toward greater nonmutual collateral estoppel.

In making the epistemic argument, I conceded that the universal injunction was only one part of the larger problem. A critic could very well suggest that we start with some other part of the problem—the merits-dominated preliminary injunction (I agree!), judicial polarization (I agree!), aggressive forum-shopping (I agree!), and broad state standing (I agree!). All of these trends reinforce each other. But to me that is a reason to tackle all aspects of the problem, not a reason for lassitude about universal injunctions. The scope of the injunction exacerbates and intensifies all the other parts of the problem.

The democracy argument is vulnerable to the objection discussed above about the rule of law. It also depends on a cross-partisan commitment to democratic self-government even when—especially when—you think the results of the democratic process are objectionable.

Finally, the judicial-role argument is vulnerable to the critique that in some ways the practice of the federal courts, and especially the Supreme Court, has deviated from the dispute-resolution model. Examples range from so-called “facial challenges” to metaphorical language about “striking down” laws to the overbreadth doctrine to the one-good plaintiff rule to widespread use of preenforcement challenges to the Court’s granting certiorari to decide questions instead of cases. The universal injunction might seem like just one more item in the list.

I think the dispute-resolution model is a better description of most of our practice, but not all of our practice. And I think the dispute-resolution model is more consistent with the Constitution, the traditional judicial role, and the legitimacy of courts in a democratic system. But precisely because the two models can each claim some basis in current judicial practice, the normative question is all important.

Conclusion

What are courts for? What are they good at? In the long view, measured by the two centuries since Marbury, what do want from the federal courts? And those are sharply contested questions, and so it is no surprise that there is contestation about how those questions are worked out in the debate over the universal injunction. Those questions are all about tradeoffs. My contention is that our constitutional system has already chosen its equilibrium in these tradeoffs, an equilibrium that is inherent in our constitutional structure and the role given to the federal courts. Here is how I put it at the end of Multiple Chancellors:

It is possible, in a sense, to solve the problem of the national injunction. But the national injunction is intimately connected to another, deeper problem, namely, the speed at which legal questions are answered. Imagine that legal questions were resolved quickly, comprehensively, and with immediate finality. That system would be criticized as rash, perhaps even as an illegitimate exercise of authority. Imagine, by contrast, that legal questions were resolved slowly, piecemeal, and with a resolution that was only eventually final. That system would also be open to criticism. For one person it might offer justice, but for others it might offer only justice delayed or outright denied.

This choice is a deep problem that will never be solved.356 Each legal system can pick its poison, tending toward the vices of immediate, final resolution or the vices of slow, provisional resolution. In this regard, there is a sharp contrast between the English Chancery and the federal courts. A medieval Chancellor spoke on behalf of God and King; an early modern Chancellor spoke on behalf of conscience and King. These claims of epistemic certainty and political authority fit hand-in-ermine-lined-glove with the existence of a single Chancellor. But the authority of federal judges is different. Power in the American political system is pervasively divided — through federalism, through the separation of powers, and through the sprawling system of federal courts. A legal question is resolved through patience and the consideration of many minds. Which system is better, if starting from scratch, is a difficult question. The question of which system obtains in the United States is easy to answer: a fragmented, many-minds system. In a system like ours, there is no room for the national injunction.

1. Trump v. Hawaii, 585 U.S. 667, 713-721 (2018) (Thomas, J., concurring).

2. Dep’t of State v. AIDS Vaccine Advoc. Coal., 145 S. Ct. 753, 756 (2025) (Alito, J., dissenting from the denial of the application to vacate order).

3. Labrador v. Poe by & through Poe, 144 S. Ct. 921, 925, 926-928 (2024) (Gorsuch, J., concurring in the grant of stay); United States v. Texas, 599 U.S. 670, 693-695 (2023) (Gorsuch, J., concurring in the judgment); Dep't of Homeland Sec. v. New York, 140 S. Ct. 599-601 (2020) (Gorsuch, J., concurring in the grant of stay).

4. Griffin v. HM Fla.-ORL, LLC, 144 S. Ct. 1, 1-2 (2023) (Kavanaugh, J., statement respecting the denial of the application for stay).

5. Doe #1 v. Trump, 957 F.3d 1050, 1092-1098 (9th Cir. 2020) (Bress, J., dissenting).

6. Georgia v. President of the United States, 46 F.4th 1283, 1303-1308 (11th Cir. 2022) (Grant, J.).

7. City of Chicago v. Sessions, 888 F.3d 272, 296-299 (7th Cir. 2018) (Manion, J., concurring in the judgment in part and dissenting in part), reh'g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018); see also Scherr v. Marriott International, Inc., 703 F.3d 1069, 1073–1075 (7th Cir. 2013) (Manion, J.).

8. Rodgers v. Bryant, 942 F.3d 451, 460-468 (8th Cir. 2019) (Stras, J., concurring in part and dissenting in part).

9. L. W. by & through Williams v. Skrmetti, 83 F.4th 460, 490 (6th Cir.) (Sutton, C. J.), cert. dismissed in part sub nom. Doe v. Kentucky, 144 S. Ct. 389, 217 L. Ed. 2d 285 (2023), and cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679, 219 L. Ed. 2d 1297 (2024); Arizona v. Biden, 40 F.4th 375, 395-398 (6th Cir. 2022) (Sutton, C. J., concurring); Arizona v. Biden, 31 F.4th 469, 483-485 (6th Cir. 2022) (Sutton, C. J., concurring).

10. CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 255-262 (4th Cir. 2020) (Wilkinson, J.), reh’g en banc granted, opinion vacated, 981 F.3d 311 (Mem) (4th Cir. 2020).

One could also cite shorter passages in opinions by Judges Higginson, Menashi, R. Nelson, Oldham, and Willett. See Feds for Med. Freedom v. Biden, 25 F.4th 354, 360 (5th Cir. 2022) (Higginson, J., dissenting); Cedeno v. Sasson, 100 F.4th 386, 416-418 (2d Cir.) (Menashi, J., dissenting); Ramos v. Wolf, 975 F.3d 872, 902-905 (9th Cir. 2020) (R. Nelson, J., concurring), reh'g en banc granted, opinion vacated, 59 F.4th 1010 (9th Cir. 2023); United States v. Texas, 97 F.4th 268, 335 (5th Cir. 2024) (Oldham, J., dissenting); Braidwood Mgmt., Inc. v. Becerra, 104 F.4th 930, 953-955 (5th Cir. 2024) (Willett, J.), cert. granted sub nom. Xavier Becerra, Sec'y of Health & Hum. Servs. v. Braidwood Mgmt., Inc., 145 S. Ct. 1038, 220 L. Ed. 2d 374 (2025), and cert. denied, 145 S. Ct. 1053, 220 L. Ed. 2d 383 (2025).

11. Cf. Does 1-3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring in the denial of application for injunctive relief) (recognizing concern that “applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument”).

12. William Baude, Jack Goldsmith, John F. Manning, James E. Pfander, & Amanda L. Tyler, Hart and Wechsler’s The Federal Courts and the Federal System 92 (8th ed. 2025).

13. Martin Shapiro, Courts: A Comparative and Political Analysis 36, 56 (1981). Cf. McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (Easterbrook, C. J.) (“The fundamental problem with this injunction is that plaintiffs lack standing to seek—and the district court therefore lacks authority to grant—relief that benefits third parties.”).

14. Baude et al, at 93.

15. Gary Lawson has expressed the same view. See pp. 121-123 here.

16. On remedies and redressability in the standing analysis, see pp. 158-161 of Proper Parties, Proper Relief (coauthored with Will Baude).