Facial Unconstitutionality & Universal Injunctions

Adam Shelton · January 8, 2020


There has been much debate in recent years over universal injunctions—that is, court orders that prohibit the government from enforcing a challenged law against anyone, and not just against the parties challenging the law. But, for better or worse, universal injunctions as a legal tool are here to stay for at least two reasons.

The first of those reasons is historical: Courts have issued universal injunctions for at least the past century. So they are not exactly a new phenomenon. The second reason is that even critics of universal injunctions accept that there is at least one circumstance in which such injunctions are permissible. Professors Samuel Bray, Howard Wasserman, and Michael Morley—all of whom strongly object to most universal injunctions—agree that a court can issue universal injunctions in class-action lawsuits. In other words, the injunction itself is not the problem, but rather the situations in which the courts are issuing universal injunctions.

In my first and second posts on this topic, I highlighted some specific situations in which a universal injunction could be appropriate, such as when a narrower injunction would create equal protection concerns or when a broader injunction is necessary to ensure the particular plaintiff receives complete relief. But there is another, broader situation in which universal injunctions may not only be appropriate, but may actually be required: when a court finds a law to be facially unconstitutional.


When a court holds that a law is facially unconstitutional, it is holding that the law cannot be enforced at all, and not merely as applied to the situation of a particular plaintiff. When such a remedy is justified is a matter of extensive debate, and often turns on the nature of the law being challenged. In some cases a challenger must show that the law would not be valid under any circumstances. In others the challenger must show that the law does not have a “plainly legitimate sweep.” And in the First Amendment context, the challenger must prove only that many applications of the law would be unconstitutional.

Whichever of these standards applies, one thing is clear: it is a high bar to meet. At a minimum, it requires showing that a law is unconstitutional in many of its applications. But when a plaintiff does meet that bar, a court should strongly consider issuing a universal injunction preventing the enforcement of the law against anyone. In fact, in nearly all circumstances, it would make no sense for a court to find that a law is facially unconstitutional and yet enjoin the enforcement of the law only against the particular person (or people) who brought the challenge.

When considering whether a universal injunction is required when a court finds a law facially unconstitutional, it helps to keep the role of the judicial department in mind. As explained by Alexander Hamilton in Federalist 78, courts are supposed to be “bulwarks of a limited Constitution against legislative encroachments.” At the Center for Judicial Engagement we contend that the essence of judicial engagement is courts enforcing the limits set by the Constitution. A court would be abdicating its role if, when confronted with a facially unconstitutional law, the court provided relief only to the people who had the means to challenge the law in court.

Supreme Court precedent supports this conclusion. In a 1984 decision, the Supreme Court explained that “[f]acial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court.” So at least in the context of the First Amendment, the Court has recognized that people whose rights have been or may be violated can challenge the law in court to protect both themselves and others.

Moreover, in that 1984 decision the Supreme Court upheld a statewide universal injunction against a Maryland law. A law which established limits on how much a charitable organization could expend in the process of fundraising activity. So clearly the Supreme Court has found some connection between universal injunctions and facial challenges. A connection found long before the current political controversy over such injunctions arose.

Currently, the propriety of both universal injunctions and facial challenges are hotly debated in the legal community. It only seems fitting that they should be partnered together at times. But what about a situation where a law is found to be unconstitutional, but not facially unconstitutional?


Courts should also consider the availability of universal injunctions in the other general category of challenges: as-applied challenges. While the definition of an “as-applied” challenge is quite broad, at its core it simply means that a law is unconstitutional in the circumstances before the court; but those circumstances may be incredibly broad or incredibly narrow. An as-applied challenge can be as applied only to the specific circumstances and the specific plaintiff. But it can also mean as applied to those similarly situated, especially if the situation and circumstances are obviously quite common. The breadth of a given challenge should determine the remedy employed by the court. In other words, a court should look at the facts in every case before it and come to a decision about what is necessary in each case. Sometimes, a universal injunction which prevents the government from enforcing the law against those similarly situated will be called for. Other times, it will not.

For example, in 2015 a District Court issued an opinion in an IJ case challenging a part of Kentucky’s psychologist-licensing scheme. We represented advice columnist John Rosemond, who had a widely syndicated parenting advice column. Even though Rosemond was a licensed psychological associate in his home state of North Carolina, the state of Kentucky sought to prohibit him publishing this column in Kentucky because the article identified him as a “family psychologist,” and Kentucky—where he did not live—had not licensed him as such.

The court found that the law was unconstitutional as applied to the circumstances of our client. But the court also found that the circumstances of our client were not unique. Many people with professional titles earned in one state (like Dr. Oz and Dr. Phil) give advice on television or in publications that are distributed throughout the country, without being licensed by each state where someone may encounter that advice. Because the situation was not unique to our particular client, the judge found that the law was unconstitutional as applied to those in a similar situation as our client. The judge issued a “universal” injunction preventing the application of the regulations against others who were similarly situated.

This was exactly what a court should do. It looked at the challenged scheme, determined that it was unconstitutional in certain ways, and prohibited the government from enforcing the law in those ways. In doing so, the court ensured that other speakers would not have to spend money and time battling against a law already found to be unconstitutional in their situation. The court’s injunction also provided better instruction to the government on how it can go about enforcing the laws and against whom.


Universal injunctions allow courts to effectively protect individuals from unconstitutional laws. Banning such injunctions would undermine those protections and force those in identical factual situations to file expensive and time-consuming lawsuits to enjoy protections that a court has already held they are entitled to. It would shift the presumption that Americans have a right not to have unconstitutional laws enforced against them and instead create a default rule of the government may enforce even a plainly unconstitutional law against anyone who lacks the resources to challenge that law.

That may be part of the point, too. Indeed, the debate over the propriety of universal injunctions is something of a proxy fight over support or opposition for the current presidential administration’s policies. To that extent, it is dangerously short-sighted. Administrations change, and there can be little doubt that many critics and supporters of universal injunctions will change their tune when different policies are on the line.

But beyond this cynical, short-sighted view, the debate over universal injunctions goes directly to the role of the judicial branch in our constitutional system. It is part of a long-running fight over the idea of “judicial restraint” and deference by the judiciary to the elected branches of government. It is this aspect of the debate over universal injunctions that I will explore in my next post.