Will the Supreme Court Hamstring Legal Challenges to Trump Policies?

Trump has certainly been busy issuing Executive Orders that purport to make significant policy changes, and the Administration has taken many extraordinary actions at the agency level as well. Fortunately, Democratic Attorneys General, as well as a wide assortment of legal organizations (such as the ACLU and Democracy Forward) have stepped up to challenge these actions—and with great success. Lawfare has a wonderful tracker of all of these case that I highly recommend. To date, these challenges have been very successful. Just Security reports that “in cases where courts have issued a ruling, plaintiffs succeeded 71% of the time in blocking the government’s actions.”

With the exception of a few cases (mostly involving issues about the Alien Enemies Act), most of the injunctions that have been issued are so-called “nationwide” or “universal injunction.” What this means is that the government is blocked from the challenged action against everyone—not just the named plaintiffs in the case.

In a consolidated set of three cases involving birthright citizenship, however, the Supreme Court will hear argument on May 15th on a request by the Trump Administration that the injunction in each of the cases be limited. The three cases were brought by in Maryland, Massachusetts and Washington on behalf of 22 States, two local membership organizations, and seven individuals. The Trump Administration is not making any argument on the merits, but made what it called a “modest request”, that

[T]he Court should “restrict the scope” of multiple preliminary injunctions that “purpor[t] to cover every person * * * in the country,” limiting those in- 2 junctions to parties actually within the courts’ power. If granted, this would mean that while the current cases are litigated, the Trump Administration’s birthright citizenship Executive Order would apply to all but those directly involved in the litigation.

The reason for this requested relief is that the Court should put a stop to routine use of universal injunctions by district courts:

Universal injunctions have reached epidemic proportions since the start of the current Administration. Courts have graduated from universal preliminary injunctions to universal temporary restraining orders, from universal equitable relief to universal monetary remedies, and from governing the whole Nation to governing the whole world. District courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden Administration. That sharp rise in universal injunctions stops the Executive Branch from performing its constitutional functions before any courts fully examine the merits of those actions, and threatens to swamp this Court’s emergency docket.

. . .

This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched. The Court should stay the district courts’ preliminary injunctions except as to the individual plaintiffs and the identified members of the organizational plaintiffs (and, if the Court concludes that States are proper litigants, as to individuals who are born or reside in those States). At a minimum, the Court should stay the injunctions to the extent they prohibit agencies from developing and issuing public guidance regarding the implementation of the Order. Only this Court’s intervention can prevent universal injunctions from becoming universally acceptable.

This is a huge deal even apart from the birthright citizenship cases. It would 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.

To be fair, the widespread use of universal injunctions is a recent development that has been criticized by lawyers and legal scholars across the political spectrum. While Harvard Law Professor Sohoni wrote an interesting article noting that universal injunctions have a long history, significant use of universal injunctions are a very new development. Their use exploded after Republican Attorneys General were successful in getting an universal injunction against the Obama Administration in 2015 in a case involving DACA. They became commonplace during the Biden Administration, and became especially notorious when Judge Kacsmaryk issued a nationwide injunction against the FDA’s approval of the leading abortion drug.

There are several reasons some oppose extensive use of universal injunctions. Given the huge consequences of a victory in district court, plaintiffs will have a huge incentive to “forum shop”, i.e., bring a case where the Judges are more likely to be favorable. During the Biden Administration, a large number of cases were brought in the Amarillo division of the Northern District of Texas where there was only one Judge—Trump appointee Judge Kacsmaryk. Another issue is that it may stop other courts in different parts of the country to address the issue despite the fact that appellate courts find that the legal and factual issues might benefit from multiple cases. There is also a very real possibility of inconsistent rulings—which actually happened in the abortion pill cases. The Biden Administration made the point that universal jurisdiction means that it must win every case challenging its actions, while the challengers get an injunction if they merely win one case.

Still, as Harvard Professor Noah Feldman has said, “it seems unconscionable for that law to stay in force while the country waits for the courts to finish the process of overturning it.” To use an extreme example (but with the Administration, “extreme” may be losing its value), what if a President a new policy of requiring pre-publication review of all posts or broadcasts discussing national security on the pretext that this is a way to stop dangerous leaks. This is clearly unconstitutional if it applies even to authors who hold no security clearances.. Does it really make sense to require every publication to bring actions in all 94 federal U.S. district courts?

Regardless of where you come out on the issue, however, the birthright citizenship cases seem to be precisely the very type of case where universal injunctions make the most sense. (Indeed, a few months ago, one might have cited this as an “extreme example”). For citizenship and immigration policy matters, the patchwork that might be created in the absence of universal injunctions can soon be unworkable. Virginia Law Professor Amanda Frost explains:

For similar reasons, enjoining federal immigration policy only in certain geographic regions is often impracticable. When the state of Texas challenged Obama’s policy of granting deferred action to undocumented immigrants, it argued that the policy must be enjoined nationwide because immigrants receiving deferred action in other states could travel to Texas. When Hawaii sued to enjoin Trump’s travel ban, it made the similar point that an injunction limited to the state of Hawaii was unworkable in a system in which immigrants lawfully entering one state can then freely travel to all the other states. In short, in some cases a geographically-limited injunction is simply unworkable, even when the plaintiff represents a particular state or region.

Finally, as even the Trump Administration itself concedes, the birthright citizenship Executive Order reverses 125 years of federal government policy. This is one of the reasons Trump did not make the Executive Order retroactive. As the plaintiffs pointed out in their briefing, among other legal deficiencies, the Executive Order is flatly inconsistent with the 1898 Supreme Court decision in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Accordingly a universal injunction that merely requires the government to comply with existing law until the Supreme court decides whether to overrule or modify its prior precedent hardly seems unreasonable. As several State Attorneys General argued in their Supreme Court brief:

The district courts below held that the Order violated “settled and binding Supreme Court precedent,” . . ., and applicants do not challenge that conclusion here. That is fatal: emergency relief may be appropriate in some cases to limit the geographic scope of relief that was ordered by a district court, but not where this Court already settled the precise constitutional question for the entire Nation. Worse, applicants have failed to substantiate the sort of significant and irreparable harm necessary to justify emergency relief, let alone to contravene nationwide precedent. The decisions below do nothing more than protect a status quo that dates back to English common law and that has existed throughout American history, except for the aberration of Dred Scott. Continuing that status quo until these cases are resolved imposes no harm on the Executive Branch. By contrast, stripping hundreds of thousands of American-born children of their citizenship would inflict tremendous and irreparable harms on the States and the public.

So what will the Court do? As David Lat explains,

At least five justices would probably be sympathetic to a challenge to universal injunctions: Justice Gorsuch, who wrote critically about them in Labrador; Justices Clarence Thomas and Samuel Alito, who joined the Gorsuch concurrence; Justice Brett Kavanaugh, who wrote a nuanced concurrence, but acknowledged that “prohibiting nationwide or statewide injunctions may turn out to be the right rule as a matter of law”; and Justice Amy Coney Barrett, who joined the Kavanaugh concurrence. (The three liberal justices dissented in Labrador—but even Justice Jackson, in a dissent joined by Justice Sonia Sotomayor, wrote that she “share[s] the concern that courts heed the limits of their power.”)

My guess is that there may well be a majority on the Court willing to bar, or at least limit, universal injunctions. It strikes me, however, that in the end a majority of the Court might also decide the birthright citizenship case is the wrong case to do so. Under the law, the government must meet several standards in order to get a stay, including making a strong showing that it is likely to succeed on the merits and demonstrate that the equitable factors—irreparable harm, balance of the equities, and the public interest—favor relief. The Court, therefore, could well deny relief on these grounds and save the issue of universal jurisdiction for another day.

But that day may come in another case. If so, victories in the courts may not quickly protect us from unconstitutional actions.