Universal Injunctions and the Constitution

Every year, schools and government agencies join the nation in observing Constitution Day and Citizenship Day the week before and after Sept. 17, the anniversary of the signing of the Constitution. Federal courts participate by offering educational resources and experiences in their communities. Below, UNH associate professor of political science Susan Siggelakis pens a piece entitled "Universal Injunctions and the Constitution."

Decades of polling data show that few people closely follow decisions of the United States Supreme Court. Further, the public has high levels of ignorance about all things judicial. Some of this is due to scant, often incorrect media coverage of the federal judiciary as well as the public's apathy. To the extent that citizens were aware of this case, they may have thought that it decided the question of whether President Trump's executive order revoking 'birthright citizenship' (Executive Order 14160) was struck down on the basis of the 14th Amendment or a Congressional statute, the Nationality Act. If so, they would have been mistaken. Rather, on June 27, 2025, at the end of the United States Supreme Court term, the Court ruled only that "universal injunctions likely exceed the equitable authority that Congress has given the federal courts."

You may have heard of a judge issuing an injunction before; perhaps one that prevents a union from striking, for example. This is an action not in law but equity, a distinction derived from English law. Equity is generally about a judge ordering certain future actions of those before the court, whereas law is generally about what has transpired in the past. Even until the 20th century, some U.S. states had separate courts for law and equity, following the English model. However, Article III of the US Constitution, the federal judicial power extends "to all cases in law and equity, arising under this constitution, the laws of the United States, or treaties made…" The very first Congress, that of 1789, followed this up in a statute, endowing all federal courts with jurisdiction over "all suits …in equity." This allows federal courts to issue equitable remedies, or order future arrangements for the remedy of harms not remediable through law.

Traditionally, injunctions are granted in order to give relief to those persons appearing before a particular court, not other people dispersed across the entire territory of the United States, people who are obviously not party to the case. So, for example, if the New England Widget Company gets an injunction from a court that halts its workers from striking, that judge will make clear that the injunction only structures the behavior of those workers in that union, not all unions, not workers in other widget companies or even workers in the same company in another plant or state. Yet, recent Presidents have encountered exactly the opposite phenomenon. When these Presidents have attempted via executive order to make what some see as controversial or illegal policies federal district court judges have gone beyond giving remedies to the aggrieved parties before them, awarding these remedies nonparties nationwide as well. For example, when President Obama issued the DACA (Deferred Action on Childhood Arrivals) order, which many saw as executive overreach, plaintiffs challenged it in a Texas federal court. They urged the judge to 'enjoin' (stop) the policy from being implemented across the entire United States. The judge did so. The Administration had argued that the decision should only apply in Texas, not country wide, but the judge's injunction was applied from sea to shining sea, to hundreds of thousands of nonparties. More recently, a federal judge issued a universal injunction against the implementation of Presidents Trump's ban on transgender persons in the U.S. military. Seeking nationwide injunctions is an increasingly attractive strategy to whichever political party doesn't hold the Presidency. Federal Ninth Circuit Court of Appeals Justice Lawrence VanDyke highlights "the ease with which one district or two circuit judges can effectively dictate nationwide policy on monumental issues, even where the legal validity of the judges' decisions is dubious."

Whether these universal injunctions were themselves a legal use of judicial power has divided lawyers, judges and scholars. Supporters cite three main reasons:

1. Universal injunctions have firm roots in a practice of the English Court of Chancery of long ago; the Chancellor employed what was called the 'bill of peace' which could prevent a defendant from taking action against a nonparty who is 'closely affiliated' with the party to the case. One argument is that this bill of peace was inherited by federal courts through the Judiciary Act of 1789 (which gave federal courts powers in equity).
2. Federal Rules of Civil Procedure 65 permits courts to issue preliminary and permanent injunctions, placing no limits on them with regard to non-parties
3. The Administrative Procedure Act (1946) authorizes nationwide injunctions in challenging a rule or action of a federal administrative agency when that may violate the procedures of the APA or is contrary to the agency's governing statute (although it's unclear if it could be used against an executive order)

However, even supporters believe that they should be used sparingly. They acknowledge that a allowing a single, unelected district court judge to control the behavior of a duly elected president and his Administration is a rather awesome exercise in power.

Those against cite equally compelling reasons. According to opponents, universal injunctions:

1. Incentivize forum shopping; that is, finding a friendly federal district court judge somewhere in the country. This further politicizes the judiciary.
2. Result in a 'lack of percolation' through the regular system of judicial appeals, resulting in abbreviated factfinding, fleshing out of legal issues of the case. Because such injunctions can be appealed to the Supreme Court, it forces the Court to decide a constitutional question hastily without a full record from courts below.
3. May result in conflicting injunctions issued by different judges.
4. Are an 'end run' around class actions
5. May continue to exist even after Presidential Administrations have changed. U.S. Court of Appeals Justice VanDyke notes that judges on his own circuit have engaged in a "coordinated dance with sometimes collusive litigants" to manipulate proceedings to avoid US Supreme Court review. "Key national issues can easily spend many years languishing in lower court purgatory, enabling one or two judges to dictate long-term national policy effectively free from Supreme Court oversight and correction."

Associate Justice Clarence Thomas has long been a critic of the practice. Several Congressional bills proposing its elimination have been introduced, one entitled The Injunctive Authority Clarification Act.

This past June, the Supreme Court as an institution finally addressed the issue in Trump, President of the United States, et al. v. CASA, Inc.et al. The Court noted that as the number of these injunctions has grown, so too has the importance of the issue. Unfortunately, its decision seemed to lack the finality that either the practices supporters or opponents would have preferred.

The Court was divided 6-3, with Associate Justices Elena Kagan, Ketanji Brown and Sonia Sotomayor in dissent. Writing for the majority was Associate Justice Amy Coney Barrett, who was joined by Chief Justice Roberts, and Associate Justices Thomas, Alito, Gorsuch and Kavanaugh.

The Court did not address the question of birthright citizenship, only the legality of universal injunctions. However, the majority did not invalidate this practice with finality. It did agree with the Trump Administration that the three district court injunctions at issue here were likely breaching the separation of powers as they "improperly intrude on a coordinate Branch of the Government and prevents the Government from enforcing its policies against nonparties." It also ruled that these types of injunctions issued by district court judges were not the types of authority conferred upon by the federal courts by the Judiciary Act of 1789. Barrett also rejected the analogy of these injunctions to old English Court of Chancery practices. In fact, she writes, "Chancellor's remedies were generally party specific" and the 'bills of peace' were the forebears not of universal injunctions but of current-day class actions. The Court ordered a temporary stay on the three universal injunctions that had halted the implementation of Executive Order 14160 across the nation. However, it allowed the injunctions to remain in place for the specific parties in the cases at hand, so that they and their attorneys could pursue their cases arguing the unconstitutionality of the Executive Order (as it applied to them). At some point soon, wrote the majority, perhaps after the expiration of the temporary stay in this case, or in another universal injunction case, the Court would decide once and for all whether the practice is always and in all circumstances illegal and unconstitutional. In the meantime, as Justice Thomas and Gorsuch warned in their concurrences, "Lower courts should carefully heed this Court's guidance and cabin their grants of injunctive relief in light of historical equitable limits. If they cannot do so, this Court will continue to be 'duty-bound' to intervene."

The dissenters argued that the majority intentionally misconstrued English legal history, particularly the role of equitable courts in being flexible at providing 'social justice' in many historical circumstances (p. 18); that the Court ignored the crucial birthright question itself; and that allowing these injunctions conduces to the public interest, among other reasons. Associate Justice Ketanji Brown claimed that disallowing such injunctions in effect facilitated an 'imperial Executive,' something rejected by the constitutional Framers. Justice Kagan, having joined with Sotomayor and Brown, found herself being publicly called out as 'a hack' on CNN for having publicly expressed opposition to universal injunctions during the Obama years, only to support them when employed again the Trump Administration.

In the end, the Court demonstrated substantial judicial restraint, as it often does with thorny and highly charged legal and political issues. It did not totally obliterate the universal injunction, but neither did it foreclose the future possibility. At some point soon, wrote the majority, perhaps after the expiration of the temporary stay in this case, or in another universal injunction case, the Court would decide once and for all whether the practice is always and in all circumstances illegal and unconstitutional. In the meantime, as Justice Thomas and Gorsuch warned in their concurrence, "Lower courts should carefully heed this Court's guidance and cabin their grants of injunctive relief in light of historical equitable limits. If they cannot do so, this Court will continue to be 'duty-bound' to intervene."