REGucation

Last Friday, the Supreme Court ruled in a highly-anticipated opinion that so-called “nationwide” or “universal” injunctions – an injunction barring executive officials from applying an executive order to anyone, and not just the plaintiffs in the case – likely exceed the equitable authority that Congress has given to federal courts. Trump, et al. v. CASA, Inc., et al., No. 24A884 (S.Ct.). The decision may impact institutions of higher education, which have been relying on nationwide injunctions to enjoin President Trump’s executive orders negatively affecting the postsecondary community.   

The 6-3 decision, authored by Justice Amy Coney Barrett, though long on words, is fairly straightforward. It begins with the recognition that criticism of nationwide injunctions has been bipartisan. It notes that “[b]y the end of the Biden administration, we had reached `a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court judge.’” Id. at 4-5. Then, it notes: “The trend has continued. During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions.” Indeed, President Obama, President Biden, and President Trump have all complained about the ability of one federal district court – the lowest rung of the federal judiciary ladder — to enjoin an Executive Order of the President of the United States as to everyone. Nationwide injunctions also have been criticized as resulting from forum shopping. When plaintiffs sought to enjoin a President Biden order, they often went to Texas, and this year, plaintiffs seeking to enjoin a President Trump order have found great success in the District Court of Massachusetts. When a nationwide injunction is entered, the Government has “little recourse but to proceed to the court of appeals for an emergency stay,” id. at 20, as the Government sought successfully in the Fourth Circuit as to the DEI Executive Orders 14151 and 14173. 

But nationwide injunctions have been a powerful checks and balances tool in the federal judiciary’s arsenal. In a time when Congress seems frozen, they have provided immediate relief to protect groups from what is seen by those groups as unlawful Executive Branch action. Justice Kagan posed a question during oral argument of this case: What if the next President passes an executive order taking everyone’s guns away? Nationwide injunctions also prevent patchwork rulings, as demonstrated by the Biden Title IX rule, which was enjoined in some areas of the country and not in others, and which created chaos for institutions of higher education operating in multiple states until the rule was vacated earlier this year.   

Because the Supreme Court was only addressing the narrow issue of whether the nationwide injunction should be stayed while the appeal is pending, it only needed to answer the question of whether the Government was likely to succeed on the merits of its argument regarding the scope of relief. It conclusively answered “yes,” as “Congress has granted federal courts no such power” to issue such nationwide injunctions. Id. at 5. It recognized that the Judiciary Act of 1789 endows federal courts with jurisdiction over “all suits . . . in equity,” but that this statutory grant bestows the power to issue “only those sorts of equitable remedies `traditionally accorded by courts of equity’ at our country’s inception.” Id. at 5. 

The universal injunction was not such a remedy, and thus the Judiciary Act of 1789 gives federal courts no power to issue them. That universal injunctions were “conspicuously nonexistent for most of our Nation’s history” “renders any claim of historical pedigree still more implausible.” Id. at 10. “[U]nder the Judiciary Act, federal courts lack authority to issue [universal injunctions].”  Id. at 21. Finally, it determined that the Government had proven it was likely to suffer an irreparable harm without the stay because when a universal injunction is entered against the Government, “it ‘improper[ly] intru[des]’ on ‘a coordinate branch of the Government’ and prevents the Government from enforcing its policies against nonparties.” Id. at 24 (citation omitted).          

The Supreme Court did not reach the underlying merits of the case, which challenges President Trump’s Executive Order No. 14160, Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. 8449. That Executive Order identifies circumstances in which a person born in the United States is nonetheless not recognized as an American citizen. Three different cases challenged the Executive Order, arguing that it violates the Fourteenth Amendment’s Citizenship Clause as well as the Nationality Act of 1940 (codified as 8 U.S.C. § 1401). In each case, the federal District Court entered a nationwide injunction, and in each case, the Government appealed but the Court of Appeals declined to stay the injunction while the case was on appeal. The Government then sought a stay from the Supreme Court. Today’s decision granted that stay in part – denying the stay as to the parties in the case, but granting the stay as to everyone else because the Government is likely to succeed on the argument that the universal injunction went too far in applying beyond the parties to the case. The Supreme Court has now advised lower courts to “move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity,” id. at 25 – i.e., an injunction must be narrowly tailored to afford complete relief only between the parties to the case. Id. at 16.  

Justice Kavanaugh, in his concurrence, noted that plaintiffs seeking a nationwide injunction can pursue that remedy by filing suit as a class action under Federal Rule of Civil Procedure 23.  J. Kavanaugh concurrence, at 2. Seizing on Justice Kavanaugh’s suggestion, and just hours after the Supreme Court’s decision, the American Civil Liberties Union filed a class action on behalf of immigrants whose children may not obtain U.S. citizenship under President’s Trump’s birthright citizenship Executive Order.      

Institutions of higher education relying on nationwide injunctions to protect their interests may no longer have that protection. They may already be protected, however, in cases in which an association in which they are members have sued on their behalf and received an injunction. In those cases, the institutions represented by the association effectively are parties to the case and the injunction applies to them. 

To be sure, the Government will begin filing motions to narrow any nationwide injunction based on Friday’s ruling. If this happens, institutions may want to consider either intervening in the case in which the injunction was entered, filing their own lawsuit challenging the Executive Order, or convincing an association in which they are members to do so on their behalf. There is power in numbers, and thus a collective challenge is more likely to be successful than an individual institution’s challenge (unless you are Harvard). 

It should be noted that for lawsuits filed under the Administrative Procedure Act (the “APA”) and challenging an agency’s order or an agency’s activities pursuant to an Executive Order, the court still has the power under the APA to “set aside” or “vacate” agency action taken pursuant to such order, 5 U.S.C. § 706(2). Such a “set aside” or “vacatur” has the same effect as a nationwide injunction – the agency action is set aside or vacated as to everyone.  The Supreme Court’s decision recognized as much: “Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.  See 5 U.S.C. § 706(2) (authorizing courts to “hold unlawful and set aside agency action”).” Trump v. CASA, at 11 n. 10. Litigants cannot use the APA, however, to enjoin the President. See Mississippi v. Johnson, 77 U.S. (4 Wall.) 475, 501, 18 L. Ed. 437 (1866) (as a general matter, federal courts lack subject matter jurisdiction to “enjoin the President in the performance of his official duties”). It remains to be seen whether the Government will argue that enjoining agency action taken pursuant to an Executive Order under the APA is really an improper way of enjoining the President. 

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