[co-author: Stephanie Kozol]*
At the end of a blockbuster term, the Supreme Court sharply limited the power of federal courts to issue so-called universal injunctions against government actors. The decision in Trump v. CASA (and related cases) did not foreclose federal courts’ power to enjoin federal policies that are likely unconstitutional but curtailed the reach of those injunctions to the parties (or potentially the plaintiff class) in a suit. The result will require affected parties to litigate rather than wait on potential widespread relief from courts in distant corners of the U.S.
In CASA, three federal district courts issued “universal” injunctions enjoining implementation of Executive Order (EO) No. 1460, which sought to identify circumstances when birthright citizenship did not apply. The plaintiffs in those cases (individuals, organizations, and states) persuaded those courts that the EO was likely unlawful and to enter a universal preliminary injunction barring various executive officials from applying the policy to anyone in the country. Unlike a typical preliminary injunction that prevents parties in a lawsuit from altering the status quo while a court decides their claims, so-called “universal” injunctions bar executive officials from implementing a policy against anyone, anywhere. The Trump administration, which has been universally enjoined as many as 25 times since Inauguration Day, asked the Court to determine whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.
Writing for the Court, Justice Amy Coney Barrett held that the federal courts lack the equitable power to issue universal injunctions. The Court explained that federal courts have the same equitable powers that the English High Court of Chancery exercised and that modern equitable powers must have a familiar historical analogue. Because the universal injunction had no historical analogue and did not exist on this side of the Atlantic for more than a century, the Court found that federal courts lack the power to bar executive action against nonparties in equity.
Notably, the Court left the door open for more widespread relief in two conspicuous ways. First, the Court expressly noted that the universal injunctions that they prohibited are available if plaintiffs follow Rule 23 to certify a class — that injunction would bind the parties and provide relief to those persons constructively in the class. The downside, of course, is that those parties also will be bound if the Court denies the injunction. Second, the Court explained that federal courts may still provide “complete relief between the parties” even if those injunctions sometimes benefit third parties. As to the state parties, the Court noted that it was “complicated” and declined to say whether complete relief would require a universal injunction to afford complete relief. It did order the district courts to determine whether a narrower injunction is appropriate.
The CASA decision also has its limits — because it only addresses the scope of equitable relief under the Judiciary Act of 1789. As a result, it does not affect whether a district court can preliminarily set aside a new agency rule to preserve the status quo. That action, because it operates on the rule and not the officer, would likely also provide universal relief. The decision also does not limit nonparties from seeking relief from courts that have already issued injunctions by joining those suits. But the Court has made crystal clear that nonparties must seek and win relief on their own.
The decision upsets what had become a consistent pattern of state attorneys general (AG) filing suit to enjoin executive actions for parties of the opposing political persuasion. District courts previously awarded universal relief and forestalled presidential administrations from achieving their aims while litigants battled it out in the courts. No longer. Injunctions will only afford complete relief — which will be the subject of much innovation — to the parties.
Why It Matters
Three takeaways for businesses and individuals. First, any person who wants relief must act. This will funnel more resources into trade organizations, labor unions, and other representational entities that have the structure and flexibility to sue in more plaintiff-friendly jurisdictions. Rule 23 provides a clear path to nationwide relief that trade organizations and others will use for their members situated around the country. And difficult First Amendment questions may arise when the government inevitably seeks disclosure of the identity of the members.
Second, state-led litigation may still benefit operations within the plaintiff states. It is unclear how businesses, nonprofits, and educational institutions that reside in a plaintiff state but operate across multiple jurisdictions may be affected. If district courts must provide injunctive relief within the geographic boundaries of its jurisdiction, then entities operating across multiple states may face a complicated and inconsistent legal landscape. Additionally, the incentives for state AGs to challenge federal policies has materially changed. State AGs will be less willing to sue to stop federal benefits, like federal loan forgiveness, if that relief is only limited to the plaintiff state’s residents.
Third, the CASA decision likely prevents statewide injunctions as well. The Court’s animating principle held that preliminary injunctions should not run to nonparties, which equally applies to state statutory and executive actions. This may encourage more state-court litigation, where courts often have “general” jurisdiction over all matters within a state. Perhaps specific federal statutes will provide greater relief, such as in constitutional litigation under Section 1988, but that remains to be worked out in the federal courts.
Industries should expect more complicated and patchwork rules that vary from state to state or between judicial circuits. Given the pace of this administration’s EOs, the legal landscape will change rapidly, and businesses must stand ready to assert their rights.
*Senior Government Relations Manager
