The Week in Universal Injunctions

A legislative option, a congressional hearing, and new briefs at the Supreme Court

A lot is happening with universal injunctions. This post will be a recap of several major developments this past week.

One major development on Monday was Chairman Grassley’s bill that would prohibit universal injunctions as well as vacatur under the Administrative Procedure Act. It’s an excellent bill and I support it.

A related development on Wednesday was that the Senate Judiciary Committee held a hearing to discuss the bill. The witnesses were Jesse Panuccio, Steve Vladeck, and me, and you can read our testimony and watch the hearing here.

Still another development is that responses were filed Friday in the three cases at the Supreme Court that present the issue of the scope of the injunctions in the birthright citizenship cases: Trump v. New Jersey, Trump v. Washington (and note the response of the individual plaintiffs here), and Trump v. CASA, Inc.

There were also non-developments with respect to universal relief, and I will highlight two.

Yesterday, in Department of Education v. California, the Court granted a stay pending appeal in a case about the termination of education grants, and though the parties had briefed the scope of relief, neither the per curiam nor the dissents took up the issue. Which made sense, because that wasn’t really the presenting question. (Amy Howe’s write-up at SCOTUSBlog is here.)

And in Trump v. J.G.G., the case about the Venezuelans shipped to El Salvador despite Judge Boasberg’s order, the acting Solicitor General filed a brief saying that the district court had granted “a backdoor nationwide injunction.” That is incorrect. The court certified a class, and yes it was fast, but that’s because the administration was engaged in a “race against the law” in order to try to evade judicial review. The administration’s own conduct is what required judicial expedition, and in equity the administration should be estopped from arguing for a more deliberate pace—to riff on an equitable maxim, presidents who would have equity must do equity. Cf. Ramirez v. Collier (“a party’s inequitable conduct can make equitable relief inappropriate”).

So, what happened in the Senate Judiciary Committee hearing? On the one hand, the arguments were pretty familiar. The politics have changed markedly from the last time I testified, which was before President Biden’s Commission on the Supreme Court, but my view is the same. Chairman Grassley candidly noted the oscillation of the political positions, both in his Wall Street Journal op-ed and his opening remarks. For the most part, the senators and the witnesses engaged in a substantive discussion of the issues. I appreciated that several Republican senators were interested in pinning down the scope of the problem (injunctions and TROs? injunctions and vacatur?), and I appreciated the comments from Democratic senators who recognized that universal injunctions were a problem, even if there was not agreement on when to solve the problem.

In my testimony, I emphasized what we might call the epistemic effects and the democracy effects from universal injunctions, arguing that they are unconstitutional while also stressing the importance of the judiciary as check on unconstitutional or illegal action by the other branches.

I noted a point of agreement and a point of disagreement with my friend Professor Vladeck’s written testimony:

These policy consequences are partly about the universal injunction and partly about how it interacts with heightened judicial polarization and extreme forum-shopping.

That’s a point on which I agree with my friend Professor Vladeck. He is right to criticize extreme forum-shopping; he’s right that challenges to the Biden administration in single-judge divisions were an egregious problem.

Where I think he’s wrong is to suggest that it would somehow be rash for Congress—at long last—to address the severe policy problems caused by universal injunctions. If I may, this is the fourth time that I’ve testified about these problems over the last 7 years.

I ended this way:

This bill will take the universal injunction and bury it six feet under. No evasions, no circumventions, no substitutes. No outs for Republicans, no outs for Democrats.

The federal courts are and should be a bulwark against unconstitutional or illegal actions taken by other government actors. They should hold the President accountable, regardless of whether the President is a Republican or a Democrat.

But the federal courts should perform that essential function as courts do: by deciding particular cases, brought by particular parties, with remedies that control the relationship between these parties. The way one decision ripples out to other cases should not be through a trial court’s injunction, but through appellate precedent.

The last ten years have seen a fundamental transformation of the relationship between the judicial branch and the executive and legislative branches. It is past time to reset that relationship.

The universal injunctions in the birthright citizenship cases came up in some of the conversations.¹ For example, Senator Durbin asked me some good questions about how the judiciary would resolve the birthright citizenship cases, and I emphasized the weakness of the government’s arguments on the merits—to paraphrase, “No worries, the judiciary has this one.” Steve argued that the broader question raised by the birthright citizenship cases is what the rule should be for the whole country in the interim while cases are being litigated before there’s a Supreme Court decision. My response (in answer to a question from Senator Blackburn): “My friend Professor Vladeck noted this question about what’s going to be the interim rule—is the interim rule going to be you have a policy or you don’t have a policy? And when we have courts disagreeing about what the interim rule should be, we shouldn’t default to ‘As long as there’s one court that doesn’t like it, it’s stopped.’ That’s what makes it a sclerotic effect on government action. The government can’t act if all it takes is one court not wanting the rule or the policy to go into effect for the entire country.”

I get why it’s singularly appealing in the birthright citizenship cases as a matter of law and justice—more on that in another post—but this is the irrational asymmetry at the heart of the universal injunction: it allows a single district court to freeze a government policy against everyone while the litigation plays out, even if all the other lower federal courts, including the appellate courts of other circuits, were to go a different way. That happens with a universal preliminary injunction even though the district court’s actual judgment in the case would not be a binding precedent for that same district court. Yes, in these cases the courts will settle (or rather keep the constitutional settlement on) birthright citizenship, so the ultimate conclusion is foregone. But in other cases a district court can be just as confident about its universal injunction and yet that confidence be misplaced. Consider, for example, the egregiously overbroad District of Maryland injunction against the enforcement of the DEI executive orders—against all non-parties, and by all federal agencies—which was then unanimously stayed by a panel of the Fourth Circuit.²

There’s more to say about the universal injunctions in the birthright citizenship cases, but that’s for another post.

1. For me the unexpected question at the hearing was about injunction bonds. You can find that at the 1:04 mark.

2. Our current pattern of lots of universal injunctions with some of them getting reversed is a policy choice in favor of “flips” rather than “splits” in policy—which as Dan Hemel shows does not make sense.