On Friday, the Supreme Court issued a 6-3 decision in Trump v. CASA, holding that universal (or nationwide) injunctions likely exceed the equitable authority that Congress vested in courts in the Judiciary Act of 1789. Accordingly, the Court granted partial stays of the district courts’ preliminary injunctions. In the orders under review, the district courts had preliminarily enjoined the Trump Administration’s executive order that purported to limit birthright citizenship. The details of the Supreme Court’s partial stays are important as they come with several qualifications:

The Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. The lower courts shall move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity. The injunctions are also stayed to the extent that they prohibit executive agencies from developing and issuing public guidance about the Executive’s plans to implement the Executive Order. Consistent with the Solicitor General’s representation, § 2 of the Executive Order shall not take effect until 30 days after the date of this opinion.

This decision marks a landmark shift in administrative law; especially in recent years, nationwide injunctions had been a core tool to constrain administrative actions. But the decision also leaves open important questions that could potentially limit its impact on the ground.

The Statutory Analysis: Equity Does Not Include Universal Relief

Writing for the Court, Justice Barrett applies the Court’s precedents to interpret the Judiciary Act of 1789. The Act provides federal courts with jurisdiction over “all suits . . . in equity,” which language authorizes federal courts to issue equitable remedies. Under the Court’s precedents (quoting Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999)), the Court must “ask whether universal injunctions are sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.’”

Regular readers of the blog will know about this historical debate, as the principal scholars on each side of the debate—Sam Bray and Mila Sohoni—have blogged about their important articles on the subject (articles hyperlinked in their names above). So have many other scholars, especially in the context of agency actions. The Court ends up agreeing with Professor Bray on this historical question. Justice Barrett provides the “bottom line” (some citations and footnote omitted):

The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority. That the absence continued into the 20th century renders any claim of historical pedigree still more implausible. Even during the “deluge of constitutional litigation that occurred in the wake of Ex parte Young, throughout the Lochner Era, and at the dawn of the New Deal,” universal injunctions were nowhere to be found. M. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev.239, 252 (2020). Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle.

Justice Sotomayor, joined by Justices Kagan and Jackson, dissents. She begins by expressing disappointment that “[t]he majority ignores entirely whether the President’s Executive Order is constitutional, instead focusing only on the question whether federal courts have the equitable authority to issue universal injunctions.” She details at length how “every conceivable source of law confirms” that “birthright citizenship is the law of the land.” She reaches the constitutional question in part to underscore how the executive order’s “patent unlawfulness reveals the gravity of the majority’s error and underscores why equity supports universal injunctions as appropriate remedies in this kind of case.”

Turning to the universal injunction analysis, Justice Sotomayor disputes the majority’s conclusion that every overbroad universal injunction causes irreparable harm to the government, observing that “by enjoining the Government from violating settled law, the District Courts’ orders do not cause the Government any harm.” On the historical debate about equity, Justice Sotomayor sides with Professor Sohoni. “In their pursuit of complete justice,” she argues, “equity courts could award injunctive and other equitable relief to parties and nonparties alike.” This included through “bills of peace,” which early American courts adopted and extended. She then chronicles the various federal cases involving universal relief that Professor Sohoni had identified in her historical work.

Justice Sotomayor concludes with a warning about the majority’s decision:

The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.

The Exceptions and Open Questions

While the Court eliminates universal injunctions against certain government actions such as executive orders, it also affirms—or in some circumstances, at least leaves open—four avenues that could result in broader nationwide relief:

1. Complete Relief: All of the Justices agree that principles of equity allow for a court to enter a universal injunction “to the extent necessary and appropriate to afford them complete relief.” Justice Barrett, writing for the Court, emphasizes at length that “[c]omplete relief is not a guarantee—it is the maximum a court can provide.” Justice Thomas, joined by Justice Gorsuch, pens a concurrence to underscore that “the complete-relief principle operates as a ceiling: In no circumstance can a court award relief beyond that necessary to redress the plaintiffs’ injuries.” District courts will have to grapple with the Court’s and Justice Thomas’s guidance on when the complete-relief principle requires a remedy that affects individuals who are not parties in the lawsuit.

2. Class Actions. All of the Justices agree that class actions under Federal Rule of Civil Procedure 23 may be used to obtain an injunction that protects a class of individuals—perhaps even a nationwide class—against a particular government action. (Over at Just Security, Samuel Issacharoff and Derek Muller have argued that multi-district litigation (MDL) can and should also be a key tool in a world without nationwide injunctions.) Justice Barrett, writing for the Court, emphasizes the constraints on class actions, including that “Rule 23 requires numerosity (such that joinder is impracticable), common questions of law or fact, typicality, and representative parties.” Justice Alito, joined by Justice Thomas, pens a concurrence to underscore that “today’s decision will have very little value if district courts award relief to broadly defined classes without following ‘Rule 23’s procedural protections’ for class certification.” Accordingly, Justice Alito counsels that “district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23.” Not surprisingly, plaintiffs in these challenges filed a motion for class certification just hours after the Court issued its decision on Friday.

3. Associational Lawsuits. In eliminating the nationwide injunction, the Court does not prohibit associations—including states—from suing on behalf of their members (or citizens). Justice Alito’s concurrence underscores that associational standing should not be easy to establish; among other things, an association must demonstrate that it “has a ‘close relationship’ to the right holder and that there is some ‘hindrance’ to the right holder’s ability to ‘protect his own interests.'” “Left unchecked,” Justice Alito warns, “the practice of reflexive state third-party standing will undermine today’s decision as a practical matter.”

4. Universal Vacatur under the Administrative Procedure Act. The Court bases its decision on a reading of the Judiciary Act of 1789, not on constitutional principles about the scope of judicial power. The focus is on whether Congress in the Judiciary Act authorized federal courts to issue nationwide injunctions. There is another potential source of statutory authority to order universal relief, at least when it comes to challenging actions taken by federal agencies: the Administrative Procedure Act (APA). Section 706 of the APA provides that federal courts shall “set aside” any agency action that violates the provisions of the APA. The conventional—though now-contested—understanding of “set aside” is that the APA authorizes “universal vacatur” of agency rules and other actions. (The propriety of universal vacatur has been a lively debate on this blog, with more than a dozen or so posts by various scholars.) The Court expressly leaves this question open. Last Term, Justice Kavanaugh defended APA universal vacatur in his concurring opinion in Corner Post v. Board of Governors. So it is no surprise that in his separate concurrence in this case he underscores that “in cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily ‘set aside’ a new agency rule.” (Emphasis mine.)

It will be interesting to see how litigants use, and lower courts and the Supreme Court respond to, these four methods of potentially obtaining nationwide relief in this post-CASA world. Will this lead to the narrowing of those avenues? Will the Court eventually read the APA to prohibit universal vacatur? Will Congress get involved?

Two (or Three?) Visions of Judicial Power

My main objective here is to explain how the Court eliminates the universal (or nationwide) injunction and to sketch out the paths forward for litigants seeking relief that protects all of those who might be affected by an unlawful government action. But I would be remiss if I didn’t zoom out, at least briefly, to the larger debate about the role of the federal judiciary in our separation-of-powers framework. Justice Barrett’s majority opinion and Justice Jackson’s solo dissent present stark visions. These disagreements led to lengthy and impassioned rebuttals from both Justices: Justice Jackson spends some 20 pages articulating her vision, and Justice Barrett dedicates four or so pages of the majority opinion in response.

For Justice Jackson, the role of federal courts is to say what the law is and prevent the political branches from violating the law, including the Constitution:

Today’s ruling thus surreptitiously stymies the Judiciary’s core duty to protect and defend constitutional rights. It does this indirectly, by preventing lower courts from telling the Executive that it has to stop engaging in conduct that violates the Constitution. Instead, now, a court’s power to prevent constitutional violations comes with an asterisk—a court can make the Executive cease its unconstitutional conduct *but only with respect to the particular plaintiffs named in the lawsuit before them, leaving the Executive free to violate the constitutional rights of anyone and everyone else.

For Justice Barrett, by contrast, the role of federal courts is to decide cases, not to regulate directly and universally the other branches of government:

No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it). But see post, at 15 (JACKSON, J., dissenting) (“If courts do not have the authority to require the Executive to adhere to law universally, … compliance with law sometimes becomes a matter of Executive prerogative”). Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law.

Although not directly responding to Justice Barrett or Justice Jackson, in his solo concurrence Justice Kavanaugh seems to advance a different vision of judicial power, at least when it comes to the Supreme Court. In urging the Court to better use its emergency (or “shadow”) docket, he explains:

After today’s decision, that order of operations [between the Executive Branch, the lower courts, and the Supreme Court] will not change. In justiciable cases, this Court, not the district courts or courts of appeals, will often still be the ultimate decisionmaker as to the interim legal status of major new federal statutes and executive actions—that is, the interim legal status for the several-year period before a final decision on the merits.

In Justice Kavanaugh’s view, the Supreme Court—not the Executive Branch or the lower courts—will “help provide clarity and uniformity as to the interim legal status of major new federal statutes, rules, and executive orders.” In other words, the lower courts are to decide cases and controversies, limiting relief to the parties of the litigation, but the Supreme Court must be the “ultimate decisionmaker” of whether federal statutes and executive actions are lawful. To be sure, that is not because the Judiciary Act authorizes the Supreme Court to order universal injunctive relief. Statutes and agency rules are not technically erased from the U.S. Code and Code of Federal Regulations when the Supreme Court finds them unlawful. Instead, it is because a decision by the Supreme Court binds all of the lower courts, and it is expected that the Executive Branch will similarly comply with that Supreme Court precedent.

If the Supreme Court takes its emergency docket seriously (and the Executive complies with Supreme Court decisions), as Justice Kavanaugh urges, the daylight between Justice Barrett’s and Justice Jackson’s competing visions of the federal judiciary might not be as much as it initially appeared, at least when it comes to unlawful statutes, regulations, and other government actions. But they no doubt continue to be distinct visions, especially when it comes to the lower courts’ role in our separation-of-powers framework.