Assessing the Impact of the Supreme Court Decision Barring Universal Injunctions

As I explained in a previous post, the Supreme Court heard argument in three cases involving birthright citizenship. The case, however, did not address the merits of birthright citizenship, but rather the Trump Administration’s request that the injunction in these three cases be limited to the parties in these cases. The argument was that “universal injunctions”, which enjoin enforcement of a Trump Administration policy even to non-parties was not permissible. As I explained in that post, a universal injunction is one that blocks the government from the challenged against everyone—and not just the named plaintiffs in the case.

On Friday, in a 6-3 decision, the Supreme Court agreed with the Trump Administration. In a decision authorized by Justice Barrett, the Court ruled that “A universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power.” In particular, the Court ruled that the Judiciary Act of 1789, which gave courts jurisdiction over “all suit . . . in equity” did not authorize universal injunctions because such injunctions were not traditionally accorded by courts of equity at the country’s inception.

I will leave to others more expert than me to parse the legal arguments made by Justice Barrett and the two dissents (authored by Justices Sotomayor and Jackson), other than to note that I found the dissents far more persuasive than the majority decision. Like the dissenters, I am also stunned that the Court chose this case—involving a clear cut violation of the U.S. Constitution—to concoct this new rule prohibiting universal jurisdictions. There was gamesmanship here by the Government designed to avoid a decision on the merits of the case, and instead allow it to impose an unconstitutional rule on the Nation during the months or even years it will take to get the merits before the Supreme Court. Unlike almost all other case, the Government did not seek to overturn the injunctions issued by the courts, but just to narrow them to the parties.

(As an aside, in my first year law school property class, we discussed how courts of equity won’t give relief to parties with “unclean hands”, such as the gamesmanship here. Our Professor, Charles Donahue, summarized this principle as
”Equity takes no Shit.” My first year section (the esteemed section 4) decided to create Section T-shirts with this phrase translated into proper Latin (since most other major legal principles were in Laten): “Aequitas non accipit Cacas.”)

I think a more interesting question is what this stunning decision means for all of the challenges (including the birthright citizenship cases) against the Trump Administration’s illegal actions. At first glance, it would appear to mean that in any case challenging Trump Administration action, relief would only be granted to the named plaintiffs (or members of plaintiff organizations). The rest of us would suffer under the illegal order until the Supreme Court makes a final decision—which in some cases could take years. For federal employees losing jobs, NGOs losing grant funding, or children seeking to remain as citizens in the US, that relief may come too late. Indeed, this is exactly what I said in my previous post.

On further reflection, and after carefully reading the majority decision, I think the impact is less far-reaching. As conservative legal scholar (and my law school classmate) Ed Whelan—who applauded the decision—tweeted, “at least in the short term it is probably going to accomplish much less than many people celebrating it realize.” He goes so far as to predict: “When a district court in a class action enters an injunction against Trump's EO on birthright citizenship that has same effect as universal injunction, the Supreme Court will leave that injunction in place.”

Why is the decision less earth-shattering than appears at first glance? The Majority itself suggests at least three mechanisms that courts may use to offer relief effectively the same as a universal injunction.

First, it noted that its decision applies only when the equity jurisdiction under the Judiciary Act of 1798 is used. In particular, the Court expressly stated that “Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.” This is important because the Administrative Procedures Act expressly provides that the courts may “set aside” unlawful agency actions. The power to “set aside” unlawful agency action effectively gives the same result as a universal injunction. Not all challenges to Trump actions can fit within the Administrative Procedures Act, but many can.

Second, as with the birthright cases, many cases against the Trump Administration have been brought by States that allege that the Trump Administration actions harm the states, and providing complete relief to the States may necessarily require enjoining the agency action against everyone. As the Court noted, the equitable tradition has among embraced the rule that courts may administer “complete relief” to a prevailing plaintiff.

As the Court explained:

Consider an archetypal case: a nuisance in which one neighbor sues another for blasting loud music at all hours of the night. To afford the plaintiff complete relief, the court has only one feasible option: order the defendant to turn her music down—or better yet, off. That order will necessarily benefit the defendant’s surrounding neighbors too; there is no way “to peel off just the portion of the nuisance that harmed the plaintiff.”

In many cases—including the birthright cases, the States have a good argument that “complete relief” to them requires that the illegal action be enjoined as to everyone. As the Court noted, the District Court for the District of Massachusetts made this very finding, and it summarized the State argument:

As the States see it, their harms—financial injuries and the administrative burdens flowing from citizen-dependent benefits programs—cannot be remedied without a blanket ban on the enforcement of the Executive Order. See, e.g., id., at 9–11. Children often move across state lines or are born outside their parents’ State of residence. Id., at 31, 35. Given the cross-border flow, the States say, a “patchwork injunction” would prove unworkable, because it would require them to track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits.

In the end, the Court did not rule—one way or another—on this argument about the State’s “complete relief argument, and it left open the possibility that “complete relief” could be accomplished by more narrow injunctions (such as to the residents of the plaintiff States and not of the nation as a whole). Instead it concluded that the lower courts should consider this argument. Given that at least one lower court has already done so, this issue will likely be back to the Supreme Court very soon.

Third, the Court suggested that broader injunctions would be allowed by use of class actions. In particular Rule 23(b)(2) allows a class action if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Under this Rule, the plaintiffs could seek to have a court certify a class of all those adversely affected by the birthright citizenship order and any resulting injunction would apply to all class members. Indeed, in response to the Supreme Court decisions, the ACLU has brought a new nationwide class action challenging the birthright citizenship and one of the original plaintiffs—CASA—has sought to amend their action to include class action relief.

Class certification is not easy to obtain, and there are many requirements that must be satisfied before class certification, but it may offer a means to get nationwide relief.

In the end, I agree with Ed Whelan that the Supreme Court bar on universal jurisdictions will likely have less of an impact than the Trump Administration hopes—and the rest of us feared.