Universal Injunction, What’s Your Function?

My quick primer on an interesting—and increasingly important—issue in the world of federal courts.

Will the Supreme Court pull back on universal injunctions? (via Getty Images)

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

And yes, I’m aware that the Supreme Court just finished up a pretty busy week of oral arguments—the capstone to another momentous Term. I’ll discuss the latest SCOTUS developments in the next edition of Judicial Notice.

Last week, in Labrador v. Poe, the U.S. Supreme Court allowed Idaho’s ban on gender-transition care for minors to take effect—but the justices said practically nothing about transgender rights. The word “transgender” appears only once throughout 34 pages of opinions.

Instead, the opinions—a concurrence by Justice Neil Gorsuch, a concurrence by Justice Brett Kavanaugh, and a dissent by Justice Ketanji Brown Jackson—focused on a fascinating issue that legal nerds have been buzzing about for years: so-called “universal” injunctions. There’s been a dramatic uptick of these in the courts, which started during the Trump administration and continued into the Biden administration.

Justice Gorsuch noted in Labrador that during the eight years of the Obama administration, lower courts issued only 19 or so universal injunctions against the federal government. But in the first three years of the Trump administration, according to Justice Gorsuch, lower courts issued 55 universal injunctions—“[a]nd if the last 12 months are any indication, it seems that trend has continued apace during the [Biden administration].”

The trend is hugely important. Imagine a law is passed or a regulation is issued that might be unconstitutional or otherwise contrary to federal law. A plaintiff sues to stop the law or regulation from taking effect. But lawsuits, especially complex cases involving complicated constitutional issues, can take years to resolve. While the legal battle plays out, can the law be enforced—potentially against millions of Americans?

It’s a critical question—and the answer increasingly turns on universal injunctions. In recent years, battles over these injunctions and other forms of nationwide relief have decided the fate of laws and regulations addressing such divisive subjects as abortion, immigration, transgender rights, vaccine mandates, and more.

Sometimes universal injunctions have blocked conservative policies, as they did during the Trump years. And sometimes they have blocked liberal or progressive policies, as they’re doing now under President Joe Biden.

Regardless of your politics, you should understand how nationwide injunctions work and why they’re so controversial. Hence this quick primer—which you can also think of as a preview, since this issue is definitely returning to the Supreme Court.

What is a universal injunction?

An injunction is, according to Black’s Law Dictionary, “a writ or order requiring a person to refrain from a particular act.” Injunctions typically apply only to the specific parties to a case.

But here, as explained in Justice Gorsuch’s Labrador concurrence, “the district court went much further.” It prevented Idaho “from enforcing any aspect of its duly enacted law against anyone”—not just the two children who filed this case, but the entire universe of potentially affected minors. Hence the term “universal injunction.”¹

Who can issue them?

A single federal district judge can issue a universal injunction, blocking a policy from taking effect across an entire state or even the entire country. It gives individual judges a vast amount of power, which should trouble anyone concerned about judicial overreach. And it has unsurprisingly led to “judge shopping,” with plaintiffs intentionally filing lawsuits in specific federal district courts—or even subdivisions of courts called “divisions”—to increase their chances of getting a favorable judge.

Take Judge Matthew Kacsmaryk. As the only judge in the Amarillo Division of the Northern District of Texas, the conservative Trump appointee is pretty much guaranteed to get any case filed in his courthouse. Conservative plaintiffs have flocked to Judge Kacsmaryk’s courtroom, where he has ruled against the Biden administration in cases involving immigration, reproductive rights, LGBTQ rights, and the abortion drug mifepristone. (As a technical matter, Judge Kacsmaryk “set aside” the FDA’s action under the Administrative Procedure Act, rather than enjoining the FDA—but as a practical matter, his order had the effect of a universal injunction.)²

Can they be appealed?

Yes—and they frequently are appealed in high-profile cases involving hot-button issues, like Labrador. They go first to the circuit courts and then to the Supreme Court, which reviews these injunctions as part of its “emergency docket,” also known as the “shadow docket.”³

Is there a legal problem with universal injunctions?

They might be unconstitutional. According to Professor Samuel Bray, a leading scholar (and critic) of universal injunctions, “Article III [of the Constitution] offers a concept of the judicial power that is defined by the dispute—a judicial resolution of a case or controversy brought by parties.” So only the specific parties before a court are entitled to relief—not random people elsewhere in the state or country.

Or as Justice Gorsuch argued in Labrador, “a federal court may not issue an equitable remedy”—here, an injunction—that is “more burdensome to the defendant than necessary to [redress]’ the plaintiff’s injuries.” So in Labrador, according to Justice Gorsuch, the judge could have blocked Idaho from enforcing its law against the two children who brought suit, but nobody else.

What are the policy problems with universal injunctions?

Professor Bray identifies at least four: they encourage forum- and judge-shopping, they preempt “percolation” of legal issues through the lower courts, they give rise to conflicting national injunctions, and they serve as an end-run around the class action.⁴

And what’s the case in favor of universal injunctions?

In the words of Professor Noah Feldman, “in our era of polarized politics, sometimes the laws in question are unconstitutional.” And in such cases, “it seems unconscionable for that law to stay in force while the country waits for the courts to finish the process of overturning it.”⁵

What does the future hold for universal injunctions?

“This is the first time we have had a case where most of the justices (seven) have joined opinions that say something, however exploratory, about universal injunctions,” Professor Bray wrote—which strikes me as significant.

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.”)

Congress has been wrestling with the issue since at least 2020. It’s now considering dueling bills that would tackle the issue either by curtailing judge-shopping, mirroring the Judicial Conference’s non-binding guidance released in March, or banning universal injunctions altogether. Neither is likely to garner enough support to withstand a filibuster.⁶

The issue will most likely be left to the courts to decide—and it appears the Supreme Court may be ready.

1. Before the Supreme Court, Idaho challenged only the universal injunction, not the relief granted to the individual plaintiffs in this specific case. As noted by Justice Gorsuch, “the State does not challenge the preliminary injunction to the extent it ensures the two minor plaintiffs in this case continued access to their drug treatments,” but “asks us to stay the preliminary injunction only to the extent it bars Idaho from enforcing any aspect of its law against any person anywhere in the State.”

This was a shrewd strategic decision, in my view. I wasn’t surprised to see that Idaho’s attorney general, Raúl Labrador, and its solicitor general, Alan Hurst, had high-powered outside help: lawyers from the Alliance Defending Freedom and Cooper & Kirk (as reflected in the cover page of their stay application).

2. Or perhaps I should say “would have had the effect,” since the Supreme Court stayed his order while the justices consider the case.

There’s been a lot of academic discussion about the difference between universal injunctions and so-called “vacatur” under the Administrative Procedure Act (APA). As noted in Justice Kavanaugh’s Labrador concurrence, “a rule prohibiting nationwide or statewide injunctions would not eliminate the need for this Court to assess the merits of some emergency applications involving new laws,” in part because “there is ongoing debate about whether any such rule would apply to Administrative Procedure Act cases involving new federal regulations, given the text of the APA.”

Specifically, 5 U.S.C. § 706 authorizes reviewing courts to “hold unlawful and set aside agency action.” Some claim that this power to “set aside agency action” includes the power to block agency action on a nationwide basis, and there’s a fair amount of lower-court precedent to this effect.

But the Supreme Court has never squarely addressed the issue—and there’s a strong case to the contrary. According to Professor Samuel Bray, the APA should not “be understood as authorizing, much less requiring, national injunctions. When the APA was enacted, national injunctions were not being given by federal courts. The language used—‘set aside’—was typical for reversal of judgments, which is consistent with Congress’s expectation that agencies would predominantly make policy through adjudication.”

3. The shadow docket, while closely related to nationwide injunctions, is a giant topic unto itself, about which books could be written. And one already has been written: Professor Stephen Vladeck’s The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. The book was a New York Times bestseller, reflecting the importance of—and public interest in—this topic.

4. Here’s more from Professor Bray, taken from an excellent point/counterpoint exchange between him and Professor Amanda Frost in Judicature:

The typical policy arguments against the national injunction are the following: First, it provides a very intense incentive to forum-shop, because so much rides on one judge. Second, it curtails the ‘percolation’ of a legal issue through the lower courts, a lack of percolation that might force the Supreme Court to decide a major constitutional question without a circuit split and in the posture of a motion to stay a preliminary injunction. (This almost happened with the Take Care Clause in Texas v. United States.) Third, it risks conflicting national injunctions, something that has been a distinct possibility at least three times in the last three years. Fourth, it is an end-run around the class action (giving its benefits without its requirements), and more generally is inconsistent with the doctrines and practices of the federal courts (e.g., no offensive nonmutual issue preclusion against the national government, no precedential weight for district court opinions).

5. In Labrador, for example, the American Civil Liberties Union (ACLU) issued the following statement, condemning the stay of the nationwide injunction in this case:

While the Court’s ruling today importantly does not touch upon the constitutionality of this law, it is nonetheless an awful result for transgender youth and their families across the state. Today’s ruling allows the state to shut down the care that thousands of families rely on while sowing further confusion and disruption.

For more in defense of nationwide injunctions, see Professor Amanda Frost’s Judicature discussion:

[T]here are at least three types of cases in which nationwide injunctions are a vital tool with which to protect the public from illegal policies.

First, nationwide injunctions can be the only means of providing complete relief to the plaintiffs. School desegregation cases are a paradigmatic example….

Second, nationwide injunctions are at times the only way to prevent irreparable injury to individuals who cannot easily or quickly join in litigation….

Third, nationwide injunctions are sometimes the only practicable method of providing relief, and they can avoid the cost and confusion of piecemeal injunctions.

6. The bill focused on judge-shopping was introduced by Senate Majority Leader Chuck Schumer (D-N.Y.), and the bill focused on universal injunctions was introduced by Senate Minority Leader Mitch McConnell (R-Ky.). So universal injunctions are definitely on the radar of Senate power brokers—but it will be difficult to secure bipartisan support for a resolution of the issues they raise.

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