The Universal Injunction Cases, Part 1: The Origins Debate
What should we call these things and when did they begin?
On May 15, the Supreme Court will hear argument in three cases about universal injunctions: Trump v. Washington; Trump v. CASA, Inc.; and Trump v. New Jersey.
In a previous post, I talked through the party briefs, as well as reasons these cases would or would not be an especially good vehicle for the Court to squarely consider universal injunctions. I won’t retread that ground here, but instead I want to step back and ask more general questions about universal injunctions, giving my sense of the state of play in the scholarship. I expect to write several posts that will be a guided tour through many of the key arguments.
For purposes of these posts, I am going to consider only injunctions and “set aside” the vacatur question.
1. What are these things and what should we call them?
Let’s get a running start. When a court decides a case, it has different kinds of “remedies” it can give—ways of trying to put things right for a successful plaintiff.1 One remedy is an injunction: an order for someone to do or not do something.
Consider a case where a plaintiff sues to block the enforcement of a statute. The plaintiff says the statute is unconstitutional, and seeks an injunction to prevent enforcement. The injunction would be an order for the federal defendants not to enforce the statute against the plaintiff. So far, so good—this is all pretty standard.
But sometimes a court may decide to give an injunction that doesn’t just protect the plaintiff. This kind of injunction controls how the government defendant acts toward anyone. It goes by different names, including ”nationwide injunction,” “national injunction,” “universal injunction,” and “non-party injunction.”
None of these terms is perfect. The most commonly used is “nationwide injunction.” But, as Joanna Lampe put it in a Congressional Research Service report, relying on Justice Thomas’s opinion in Trump v. Hawaii: “The term ‘nationwide injunction’ is potentially confusing because, while nationwide injunctions often apply anywhere in the country, the defining feature of a nationwide injunction is not its geographic scope but rather the entities to which it applies.”
One advantage of “national injunction” is that it leaves open the possibility that different considerations could apply nationally and within a state (cf. Frothingham’s distinction between the nation and the city). Indeed, this is why I used that term in Multiple Chancellors.
For the broader category of injunctions that go beyond the parties to prohibit enforcement of a legal norm, whether federal or state, the most apt term is “universal injunction.”
Whatever term you use, the main thing to remember is that what’s distinctive about these injunctions is not their geographic breadth, but rather that they go beyond the parties to the case. They control how the defendant acts toward non-parties—that’s what’s unusual. And this is something that all the scholars working in this area agree on.
Want to read more on the nomenclature? Start with Howard Wasserman’s article “Nationwide” Injunctions are Really “Universal” Injunctions and They Are Never Appropriate.
2. When did universal injunctions start?
This question is where the disagreement begins. But first some points of agreement. All scholars working on this would say that universal injunctions are pretty rare before the last third of the twentieth century, and they were not central to our judicial politics until 2015. What happened then? That’s when Texas sued the Obama administration to stop DACA, claiming that it would have to spend more on driver’s licenses. A district court gave a national injunction, the Fifth Circuit affirmed, and the Supreme Court affirmed by an evenly divided vote. (There was a vacancy on the Court due to Justice Scalia’s death.) After that, the use of national injunctions exploded, stymying many of the initiatives of the final year of the Obama administration as well as of the first Trump administration, the Biden administration, and now the second Trump administration.
So there’s a pretty consistent periodization in the scholarship:
Pre-1960s
1960s to 2010s
2010s to present
There’s not really debate about the last two periods. In the second period, there was a growing trickle of universal injunctions, and appellate courts went both ways on whether they were permissible. The third period is when the floodgates opened. Some evidence for this rise can be found in District Court Reform: Nationwide Injunctions, a Developments in the Law piece from the Harvard Law Review.
The sharp debate is about the first period. The main argument against universal injunctions in the first period is my article Multiple Chancellors: Reforming the National Injunction. The main argument in favor of their existence is Mila Sohoni’s influential article The Lost History of the “Universal” Injunction, which was further defended in this post at Notice and Comment and is further developed in her amicus brief in the universal injunction cases. Other supportive arguments can be found in an amicus brief filed by some leading legal historians. I responded to a similar legal historians’ brief in 2018 with a couple of critical blog posts at the Volokh Conspiracy, and the debate was summarized (with links to my responses) in this post by Chris Walker at Notice and Comment.2 Jim Pfander and Mary Zakowski have a forthcoming article that explores patent cancellation and treats it as a non-party-specific remedy; this article is drawn on by Jim’s amicus brief. And in a just-posted paper, Tomás Gómez-Arostegui considers whether one of the cases Pfander and Zakowski cite, the seventeenth-century Chancery decision in Attorney General v. Vernon, supports universal injunctions.
So what is all the fuss about? Even for the first period there’s a lot of agreement about the record, with most of the disagreement being about how to interpret it. In particular, there are four key points of disagreement:
Equity would give broad relief through a “bill of peace,” but is that an antecedent for universal injunctions or class actions? The legal historians’ amicus brief tries to put daylight between the bill of peace and the class action: “It is a conceptual mistake to think of bills of peace as mere class action devices . . .” (p. 5). I agree they are not identical, but I see no way of avoiding the conclusion that they are not only highly similar but also that the modern class action is the lineal descendent of the bill of peace. That lineage was traced in Steve Yeazell’s classic work, From Medieval Group Litigation to the Modern Class Action.
To me, the core point is that it was critical for all the interested parties—who would be bound by the decision—to be either present or represented. There were entire treatises devoted to parties in equity, and these points were a constant theme. That’s where the doctrine about necessary and indispensable parties comes from.3 That symmetry (bound by a win, bound by a loss) is to me the central and enduring characteristic of a representative suit, and it is strikingly absent from universal injunctions.
I will concede that part of what requires translation is that the class action has developed over the twentieth century. After Hansberry v. Lee, we tend to do class definition ex ante, which allows notice up front and leaves less work at the enforcement stage. The older practice was to decide a case for the “class,” but then decide later—if necessary—whether some person at the margins was in or out of the class.
It’s noteworthy that the legal historians’ brief does not address Frothingham at all.4 I think that’s telling because what seem to be the best examples for their argument—the taxpayers’ suits in Pomeroy’s treatise, and the stockholders’ suit—are exactly the categories of cases that the Court considers and distinguishes in Frothingham. For the Frothingham Court, those are instances of group litigation where some of the affected group are suing in a representative capacity on behalf of all of the affected group. They are what we would now call a class action. According to Frothingham, those categories simply do not support a national injunction.5
When there is silence in the historical record—like the absence of confirmed universal injunctions during the thousands of challenges to New Deal legislation—is that a “dog that didn’t bark” that shows there were no universal injunctions, or does it simply show that we don’t know enough about the historical record?6
In the past there were many impediments to seeking universal injunctions, from sovereign immunity to narrow federal question jurisdiction. Should we think of these as full explanations, so that if they were removed, then universal injunctions would have happened? Or should we think of those other impediments as reinforcing the argument that universal injunctions were alien to the practice of the federal courts and how federal judges conceived of their role?
There are also disagreements over how to interpret some of the cases. These include Journal of Commerce & Commercial Bulletin v. Burleson and Lukens Steel Co. v. Perkins, which have been the subject of considerable debate.7 Or consider Youngstown, which I think illustrates party-specific relief, and Alan Morrison in his amicus brief says illustrates a universal injunction.
Even though there are points here of sharp scholarly disagreement, it’s kind of refreshing how much of this has been worked out and become the subject of consensus. That includes the basic descriptive account of the second and third periods, as well as a lot of the evidence for the first period: the bill of peace is important, we don’t have some large body of universal injunctions in this period (as evidenced by the apparent lacuna in the New Deal challenges), and there are a fairly narrow set of cases that are given conflicting analyses. The differences are over what to make of that evidence, including both its quality and its quantity.
3. Why does it matter when universal injunctions started?
Federal courts trace their “jurisdiction” in the broadest sense—their power to act as courts, deciding cases—to legal authorities in the past. Let’s start with the Judiciary Act of 1789, which grants federal courts their equity jurisdiction. As the Court has said many times (including but not limited to Grupo Mexicano), that statute gives federal courts the traditional powers and jurisdiction of the English Court of Chancery.
To be clear, that does not mean equity is static or fixed in 1789. Equity could not possibly be static, given the functions it serves in our legal system (e.g., constraining opportunism, as explored in Henry Smith’s Equity as Meta-Law; and giving remedies that are not a matter of right but require channeled discretion, as explored in my The System of Equitable Remedies). As Paul Miller and I put it in Getting Into Equity, “If law is not static, the equity that corrects and supplements it cannot be static either.”8 And the Court has recognized as much.9
But even though equity is not static, the Judiciary Act of 1789 is properly understood as pointing judges back to the past to find the landmarks of equity jurisdiction. One reason is that references to “equity” in statutes (and the Constitution) typically have as their referent this traditional body of equitable doctrines and remedies. It’s not just “flexibility” or something like that—on this point, Justice Scalia’s majority opinion gets the better of Justice Ginsburg’s dissent in Grupo Mexicano.10 There is a there there. Equity is a body of law, just like torts or contracts (that point is better appreciated right now in the United Kingdom, Australia, and Canada than in the United States). And note the kind of body of law that equity is: it has been primarily developed through judicial decisions—we could loosely call it “common law”—and that inevitably means that most of the development is in the past, with lots of path dependence to the present.11
In fact, I think a compelling description of equity is given on pages 16 to 20 of the legal historians’ brief—including that equity is not static, and that its development should be guided by traditional equitable principles.
This doctrinal point about the need for traditional equitable principles can be given a sociological edge. In the past, American lawyers were more likely to study equity and understand it as a component of the American legal system, and given the current malaise in teaching equity in the United States,12 it makes sense to look to times when judges had a more instinctive feel for it. We can still read his treatises, but Joseph Story has left the building.
Now all of this is relevant for the legal grounding for universal injunctions. If they were part of historic equity practice, then they are presumptively available today for federal judges. And if they were not part of historic equity practice, then some story needs to be told about how they are a reasonable development of equitable doctrine, a story from an internal perspective showing that this emergence coheres with the rest of equitable doctrine, including both the powers and the limits of equity.
It is precisely because those powers are so great that the limits have always loomed large, including the emphasis on parties as the proper ambit of equity’s action. As Will Baude and I put it in Proper Parties, Proper Relief: “A judge who thinks of an injunction as the automatic result of satisfying a four-factor test, who thinks of things like ‘irreparable injury’ and ‘balancing the equities’ as merely hurdles to be gotten over before getting on with the business of correcting what’s wrong with the world — such a judge is not doing equity.” Our supporting footnote reads:
Compare Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (Hand, J.) (“[N]o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree.”), with Randall Munroe, Duty Calls, XKCD, http://xkcd.com/386 [https://perma.cc/GWD6-7GUW] (“Someone is wrong on the internet.”).
So equity is capable of change—yes, emphatically yes—but it should be changed in continuity with its traditional principles and patterns. And that is why the debate over the history matters. Whether the universal injunction is traditional in equity will shift the ground for all of the subsequent argument.
Note that the answer I just gave is entirely about the Judiciary Act of 1789. Much more could be said. This is a moment where the federal judiciary is showing a relatively high degree of interest in “history and tradition,” so there is a receptiveness to that kind of argument across many areas of law. Moreover, the historic powers of common law and equity courts are critical background for understanding what “the judicial power” means in Article III of the U.S. Constitution.13 Exercising that judicial power, the federal courts inevitably have an equitable jurisdiction that does not have all of its content filled in by statutes and rules, so it must be found to a considerable extent in the “common law” practice of equity.14 And other statutes expressly tell courts to look to equity’s past (e.g., the “agreeable to the usages” line in the All Writs Act). The bottom line: a turn to history here is required by Grupo Mexicano and other precedents, but it is overdetermined.
Addendum on Grupo Mexicano
Given my reliance here on Grupo Mexicano, I should note that it has been the subject of a lot of scholarly critique, including by Judith Resnik and Steve Burbank, and with a skeptical view in Jim Pfander’s amicus brief. I offered a qualified defense in my The Supreme Court and the New Equity. My view of Grupo Mexicano has not substantially changed, but I would want to distinguish three questions: can a federal court grant a preliminary injunction to a plaintiff who is suing for damages (the doctrinal question), should that question be answered by looking to traditional equity (the methodological question), and if there is going to be a change in equity’s answer, who should that change come from (the institutional question).
I think the Court was correct to answer the doctrinal question in the negative. In fact, I recently learned that the Delaware Court of Chancery got there first. As stated in Ames, Chafee, and Re on Remedies (4th edition, page 452): “About a decade before Grupo Mexicano, the Delaware Court of Chancery reached essentially the same position, and did so strictly on the basis of equitable principles. See E.I. Du Pont de Nemours & Co. v. HEM Research, Inc., 576 A.2d 635 (Del. Ch. 1989).” I am not aware that the Delaware Court of Chancery’s decision has been cited or discussed in any of the federal courts scholarship critiquing Grupo Mexicano.
On the methodological question, Justice Scalia’s opinion for the Court largely has the better answer, compared to the dissent. I say “largely” because the majority opinion is patient of multiple readings, including some that would be unduly rigid and static in their conception of equity. For other readings, see footnote 61 in The Supreme Court and the New Equity, which cites “phrases in the opinion suggesting that the historical inquiry is broader than 1789 and that incremental change is not ruled out.” As Paul Miller and I put it in Getting Into Equity, “Grupo Mexicano itself recognizes that some development in equity is necessary, and this has long been the position of the Court.” I do think the majority should have been more clear in rejecting the idea that equity was fixed in 1789, instead of leaving some of this to inference. On the whole, however, Grupo is right on the methodological question.
On the institutional question, however, Grupo is straightforwardly wrong. There is no reason to think that Congress has any particular aptitude in refining and developing the law of equity, and in fact operating through legislation is inimical to the case-specific adjustments that are how equity tends to operate (outside of areas that are exclusively equitable like trusts). Congressional interventions tend to borrow from equity (think of using accounting for profits as a measure of damages recovery in an IP statute) or to prohibit equity’s operation (think of prohibitions on labor injunctions). But it would be unreasonable to think that Congress was going to incrementally refine, say, the doctrine of laches. So even though Grupo was right on the doctrinal and methodological questions, it would have been better to resolve the case as a matter of equitable principles (like the Delaware Court of Chancery), without wheeling out the heavy artillery of separation of powers to answer the institutional question. That would also be better on grounds of constitutional avoidance. And seen that way, all of the separation of powers part of Grupo is dicta anyway.
Summing up
So where does this leave the debate over the history? I am still inclined to think the national injunction began in 1963. But the previous half century is contested. Most of the contestation is not about what happened, as much is it about how to interpret what happened and how to connect it to the present. And the dominance of national injunctions in our constitutional politics, this chain reaction of executive action, universal injunction, and emergency docket appeal to the Supreme Court, is a new development from the last decade. For the justices, the debate about universal injunctions will be shaped by history—and by recent history.
Want to read more about remedies? I recommend my casebook with Emily Sherwin, Ames, Chafee, and Re on Remedies; and Doug Laycock and Rick Hasen’s casebook, Modern American Remedies.
The link to the 2018 legal historians’ amicus brief I responded to is now dead, but you can find the brief at Br. of Legal Historians as Amici Curiae Supporting Plaintiff and Appellee the City of Chicago, Chicago v. Barr, 961 F. 3d 882 (7th Cir. 2020) (No. 18-2885), 2018 WL 6173238.
E.g., Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 6 F. Cas. 72 (C.C.D. Nev. 1871) (Field, Circuit Justice):
It is undoubtedly a general rule in equity that all persons materially interested in the matter in controversy, or object of the suit, should be made parties in order that complete justice may be done and a multiplicity of suits be avoided. And usually when it appears that persons thus interested are not brought in, the court will order the case to stand over until they are made parties. A court of equity, as has been said by a distinguished chancellor, delights to do complete justice, and not by halves. But sometimes, from the residence of parties thus interested, the court is unable to bring them all before it. Particularly is this so with the circuit court of the United States, which possesses no power to authorize a constructive service of process upon absent or non-resident defendants, and which can only exercise its jurisdiction in that class of cases depending upon the citizenship of the parties, where all the parties, however numerous on one side, are from a state different from that of the parties on the other side. In all such cases, the court will consider whether it is possible to determine the controversy between the parties present, without affecting the interests of other persons not before the court, or by reserving their interests. If the interests of those present are severable from the interests of those absent, such determination can generally be had, and the court will proceed to a decree. But if the interests of those present and those absent are so interwoven with each other, that no decree can possibly be made affecting the one without equally operating upon the other, then the absent persons are indispensable parties, without whom the court cannot proceed, and, as a consequence will refuse to entertain the suit.
I discuss Frothingham at length in Multiple Chancellors. The Sohoni amicus brief does cite Massachusetts v. Mellon (the companion case), but it distinguishes it as “affirming dismissal on standing grounds.” In Multiple Chancellors I argue that reading a division between “standing” and “remedies” in Frothingham would be anachronistic: the Court is decisively rejecting a national injunction for intertwined reasons that we would now call “standing” and “remedies.”
The Sohoni amicus brief addresses the New Deal period at page 9, note 6; and Lost History addresses it at page 1002, note 531. Multiple Chancellors addresses it at pages 433-435.
I therefore agree with the statement in the legal historians’ amicus brief (p. 23) that “Equity has always been multifaceted, remedially creative, and the subject of a contested history,” citing a superb Kellen Funk chapter, The Union of Law & Equity: The United States, 1800–1938.
See Gordon v. Washington, 295 U.S. 30, 36 (1935); Poor v. Carleton, 19 F. Cas. 1013, 1015, 1017–18 (C.C.D. Mass. 1837) (Story, Circuit Justice). This can also be seen by the Court’s many citations to Story’s writing on equity—in 1789 he was only ten years old—and Pomeroy’s treatise from the 1940s (often good, and larger than McClintock’s Handbook of Equity but not as reliable). And of course Story himself never treated the law of equity as fixed in 1789, and he was in dialogue with continuing equitable developments in England.
We might say that Justice Scalia got the words right and Justice Ginsburg, the music.
On the common law as a mode of development, see my The Concept of the Common Law. Note 16 recognizes that the common law and equity are not identical in their methods of development.
In this regard, see my Equity: Notes on the American Reception.
See Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 312 (2008) (Roberts, C.J., dissenting); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 SUP. CT. REV. 429, 536-537.
Notwithstanding Erie: no one who studies remedies could possibly say there is no general law or federal common law: most of the law of remedies is general law and is nowhere stated in any federal statute or rule.
When we think about equitable relief only running to/against parties, how does that square with bankruptcy discharge orders or other similar relief in the in rem context?