Notice & Comment

Three Footnotes that Clarify the Universal-Injunctions Debate—Or Should, by Zachary D. Clopton

Followers of public-law litigation will be well versed in the debates surrounding so-called universal injunctions. Though definitions vary, one common definition of what makes an injunction “universal” is that it enjoins the government from enforcing laws “not only against the named plaintiffs, but against all persons everywhere who might be subject to enforcement of those laws.”[1] So, for example, when two Boston-area universities challenged an administration policy to deny visas to students taking online courses, the district court might have enjoined that policy as applied to all persons, not just those attending the two universities.

Critics of universal injunctions have argued that these injunctions are bad policy, are inconsistent with the history of equity, and violate the judicial-power limits enshrined in Article III. According to these critics, universal injunctions violate Article III because they provide relief to nonparties. The Article III critique is especially consequential—and pernicious, in my view—because if there were an Article III obstacle to these injunctions, it would not only limit the federal courts but it also would disempower Congress from authorizing these injunctions, even in limited circumstances.

Although a couple of Supreme Court cases this term seemed to present the universal-injunctions issue, the Court avoided addressing it squarely. But footnotes in decisions on DACA, free speech, and the contraception mandate suggest that the Article III argument against these injunctions may have lost its potency. This brief post reviews those three footnotes and what they might—or should—mean for universal injunctions.

The DACA Cases

In three cases, the Supreme Court was asked to evaluate DHS’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. Lower courts had variously issued universal injunctions against the rescission or held that the rescission should be vacated under the Administrative Procedure Act (the remedy of “vacatur”). In Department of Homeland Security v. Regents of the University of California, the Supreme Court held that the rescission was arbitrary and capricious, and that the proper remedy was to vacate. In so doing, the Court avoided opining directly on the universal injunctions issued by lower courts in the other DACA cases. As the Chief Justice explained, “Our affirmance of the . . . order vacating the rescission makes it unnecessary to examine the propriety of the nationwide scope of the injunctions.”

But this seeming dodge actually communicated two important ideas in the universal-injunctions debate. First, although the conversation has primarily focused on universal injunctions, the Department of Justice has pursued a broader argument against “universal” relief writ large—an argument that includes not only injunctions but also vacatur. The DOJ’s position is that when a court vacates agency action under the Administrative Procedure Act, it should do so only with respect to the parties to the case. The DOJ makes this point by marshalling the same arguments as in the universal-injunction context, including the argument that Article III bars relief to nonparties. Professor Mila Sohoni, among others, has explained that APA vacatur is not limited to parties, and indeed many APA decisions have proceeded on this assumption without controversy. The Chief Justice’s footnote implies that the Court agrees that vacatur is not limited to parties. It was “unnecessary” for the Court to examine the scope of the injunctions only because the vacatur already reached nonparties.

Second, this conclusion about the universal scope of vacatur also has implications for the scope of injunctions themselves. Universal-injunction critics claim that these injunctions are beyond the scope of Article III because they provide relief to nonparties. The DACA case treated as uncontroversial the notion that nonparty-protecting vacatur is within the Article III judicial power. And if that is true, then the nonparty-protecting nature of a universal injunction should not, on its own, render it outside the bounds of Article III either. Or to put it another way, DACA confirms that Article III does not contain a categorical prohibition on nonparty-protecting relief.

Barr v. AAPC

Second, in Barr v. American Association of Political Consultants, Inc., the Supreme Court held that it violated the First Amendment to exempt government debt collection from a ban on cellphone robocalls.

This was not a case, as far as I know, in which the universal-injunctions issue was discussed. But the Court in this decision left some breadcrumbs toward the universal-injunction question. In discussing what should happen once the Court found the provision to be unconstitutional, Justice Kavanaugh characterized the provision as “invalid.” In footnote 8, Justice Kavanaugh articulated what it means to find a provision “invalid,” and he contrasted the Court’s view to that of Justice Thomas. Kavanaugh first explained where the two approaches agree: “Under either the Court’s approach or Justice Thomas’s approach, an offending provision formally remains on the statute books (at least unless Congress also formally repeals it). Under either approach, the formal remedy afforded to the plaintiff is an injunction, declaration, or damages.” Kavanaugh went on to say that a key difference is that “[u]nder the Court’s approach, a provision is declared invalid and cannot be lawfully enforced against others” (emphasis added). This is in contrast to Justice Thomas’s approach under which “the Court’s ruling that a provision cannot be enforced against the plaintiff” (emphasis added).

Writing for the Court, Justice Kavanaugh described the usual practice of invalidating statutory provisions such that they cannot be lawfully enforced against nonparties. This implies that it would be consistent with Article III to protect nonparties in this way. In so doing, the Court further called into question arguments against universal injunctions that suggest that nonparty-protecting relief categorically violates Article III.

Importantly, this conclusion does not depend on an underlying congressional authorization—unlike in the DACA cases, there was no statutory basis for universal relief here. This also conclusion is not limited to decisions of the Supreme Court—in this very case, the Supreme Court affirmed the Fourth Circuit’s decision to invalidate the same provision for essentially the same reasons.

Little Sisters of the Poor v. Pennsylvania

Finally, one day after AAPC, the Supreme Court in Little Sisters of the Poor v. Pennsylvania upheld exemptions to the contraception mandate in the Affordable Care Act. A companion case, Trump v. Pennsylvania, squarely presented the universal-injunction question. But because the Supreme Court upheld the exemptions and rejected the injunctions, it seemingly dodged the universal-injunction issue. (For their part, dissenters who would have upheld the injunctions found that the “nationwide” scope of the injunction was not improper.)

Here, too, the Court buried in a footnote a rejoinder to universal-injunction critics. One thread of the Article III critique is that federal courts should only provide relief for those parties who can establish Article III standing—the claim being that persons who lack standing also should not be the subject of the relief provided. Professor Amanda Frost, among others, has identified many situations in which federal courts provide relief without requiring Article III standing, yet critics of these injunctions continue to press this argument. It is notable, therefore, that leading universal-injunction critic Justice Thomas wrote on behalf of the Court that “[u]nder our precedents, at least one party must demonstrate Article III standing for each claim for relief.” Notice that Justice Thomas did not require “all parties” to demonstrate standing to obtain each type of relief, only that “at least one party” must do so. Indeed, as if to reinforce this point, Justice Thomas went on to observe that the Third Circuit was wrong to even inquire into the Little Sisters’s standing because another party (the federal government) had standing to pursue the same relief.

Taking Justice Thomas at his word, it is no longer a good argument that injunctions may not protect persons who lack Article III standing as long as “at least one party” can demonstrate standing for each claim for relief.


These three footnotes suggest that Article III imposes no categorical prohibition on relief that protects nonparties through vacatur; that Article III imposes no categorical prohibition on relief that protects nonparties through invalidation; and that Article III imposes no categorical prohibition on providing relief to those who have not established Article III standing. Taken together, these propositions imply that Article III does not impose a categorical prohibition on protecting nonparties through injunctive relief—that is, it does not categorically prohibit universal injunctions.

To be sure, there are many other arguments against universal injunctions. And even the most ardent universal-injunction proponents do not claim that they are mandatory in every case. At a minimum, the usual test for injunctive relief should apply. But these footnotes should be read to clarify that the debate in the universal-injunction cases is not about Article III.

This point is more than just about streamlining future litigation. As suggested above, one thing that sets apart the Article III objection is that—if accepted—it would cut off the ability of Congress to authorize nonparty-protecting injunctions, as Congress cannot expand the jurisdiction of federal courts beyond what the Constitution permits. This is a point that co-amici and I made in the contraception mandate case. As we explained in our brief:

A decision relying on Article III not only constrains federal courts, but also would have the effect of dramatically undercutting the power of Congress. Congress cannot authorize federal courts to exercise jurisdiction that exceeds Article III of the Constitution. . . . Were this Court to hold that Article III categorically prohibits injunctions that protect nonparties, then Congress would be unable to authorize federal courts to issue any injunctions that protect nonparties—even in limited, enumerated circumstances.

The universal-injunction debate is not over, but I hope that these footnotes help push the Article III arguments off the table.

Zachary D. Clopton is a Professor of Law at Northwestern Pritzker School of Law. You can find his recent article on universal injunctions and preclusion here.

[1] Howard M. Wasserman, “Nationwide” Injunctions Are Really “Universal” Injunctions and They Are Never Appropriate, 22 Lewis & Clark L. Rev. 335 (2018).

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