What's New and What's Not New with Universal Injunctions

Notes on Jack Goldsmith's "Problems with Universal Injunctions Against Trump’s Program?"

In a post this morning at the excellent Executive Functions Substack, Jack Goldsmith worked through some of the questions about universal injunctions against the current administration. His analysis concluded this way:

I have argued that (i) the administration has a legitimate complaint about universal injunctions and administrative stays that should ultimately be resolved by the Supreme Court or Congress; (ii) there is a pattern of mostly Democrat-appointed district court judges enjoining Trump initiatives, just as there was a similar (and indeed more extreme, in terms of percentages) mirrored pattern during the Biden years; but (iii) to know whether the 2025 pattern reflects real or systemic bias we would need to assess a whole slew of issues, including the influence of plaintiff forum shopping, the profile of judges who denied relief, and the abundant evidence that Trump 2.0 is not taking legal compliance seriously.

There is, as Jack notes, a vigorous normative debate about universal relief. My own position is no secret. I think national injunctions are wrong on grounds of policy, equitable doctrine, and the judicial role of the federal courts under Article III. I articulated this position in Multiple Chancellors and still hold it: national injunctions were wrong when they shut down most of the major initiatives at the end of the Obama administration, in the first Trump administration, in the Biden administration, and in the current Trump administration. They are wrong even if the government acts illegally—in fact, that’s going to be true by definition, since remedies against the government won’t be given if the government wins. There are, however, two sides to the debate, and I respect the scholars have made principled arguments in favor of universal relief (such as Amanda Frost and Mila Sohoni)—and they, too, have stuck to their principles regardless of the party that controls the White House.

I agree with essentially everything Jack writes in his post, but I want to add several brief points:

1. The claim that the courts are giving universal relief now against the Trump administration so much more than against the Biden administration might be true, but that’s not really clear. And even if so, it is an apples-to-oranges claim for the reasons Jack articulates, including the much greater number of executive orders in the current administration (I can remember when Republicans thought governing by executive order was unconstitutional!), as well as what we might charitably call the administration’s attenuated degree of attention to what the law requires. If you issue more illegal executive orders, you’ll lose more cases, and if you lose more cases, you’re going to face more injunctions, universal or otherwise. But there’s also one more important empirical distinction: the study of universal injunctions that Jack cites (District Court Reform: Nationwide Injunctions), though very illuminating, does not count vacatur under the Administrative Procedure Act. Now I remain deeply skeptical that vacatur actually is a separate remedy from injunction (see The Truth of the Truth of Erasure). But the courts have begun treating it as a distinctive remedy. As appellate courts grew more skeptical of universal injunctions in the Biden administration, courts and litigants started switching to requests for vacatur as the remedy. That means that any count of universal remedies against the Biden administration that leaves out vacatur will seriously understate the degree to which those remedies stopped the Biden administration in its tracks. The Biden administration issued a lot of rules that were stopped with vacatur; the second Trump administration is at present relying a lot on executive orders, and they are being stopped with injunctions. Any narrative that counts only injunctions and leaves out vacatur will miss the fundamental equivalence in the judicial action against both administrations.

2. Democratic and Republican administrations come and go, but they have been pretty consistent in opposing universal relief. Intimations of this line of thought can be found as far back as the Clement brief in 2008 in Summers v. Earth Island Institute, not to mention the non-acquiescence debate in the 1980s—all well before the rapid modern rise of national injunctions began in 2015. In other words, Jack is correct to highlight the consistency between Solicitor General Prelogar’s arguments and the current arguments, and the general consistency runs back even further. The current administration is right to continue that cross-partisan opposition to national injunctions. (I am endorsing the legal arguments against national injunctions, not the overheated rhetoric or ridiculous calls for impeachment of judges.)

3. The national injunction has in the last ten years fundamentally changed the equilibrium of how the federal courts and the executive relate, and that is true for Republican and Democratic presidents. At any particular moment its valence is partisan, but the remedy itself is no respecter of persons. Across Republican and Democratic presidents, the national injunction has the same effects of accelerating and universalizing judicial review, with predictably bad consequences for democratic governance, percolation of issues in the lower courts, hyped up incentives for forum-shopping, a loss of symmetry for plaintiffs in winning and losing, and so on. So it is simply not a true history to tell a story that starts and ends with Democratic-appointed judges stopping President Trump. In fact, the modern ascendance of the national injunction can be traced to the Texas Solicitor General’s office in the second Obama administration.

The bottom line is that the current administration, like the previous one, is being thwarted in most of its major policy initiatives by the federal courts. Courts should reject illegal executive action, but they should do it as courts do: in cases, with proper parties, with remedies that are tailored to those proper parties. That principle holds no matter who is president. And that principle should be advanced—or for those who reject it, it should be criticized—by telling the truth about what the courts are actually doing. Federal courts are stopping many of the major initiatives of the current administration with universal relief, just like the federal courts did with many of the major initiatives in the preceding administrations, Democratic and Republican. The case against national injunctions is strong, but it is a case grounded in the transformation of judicial remedies in the last decade, not the last month.