The Supreme Court & Universal Injunctions

Adam Shelton · January 28, 2020


All “nationwide injunctions” are universal injunctions. But not all universal injunctions are nationwide injunctions. This fact has become all the more important since Monday with Justice Gorsuch’s concurring opinion in the Supreme Court’s decision to stay the nationwide injunction against the Trump Administration’s public charge rule.

In the concurrence Justice Gorsuch cast doubt on the propriety of nationwide injunctions. He especially questioned the practicality of such injunctions, keying in on the fact that the government must win every case (in potentially 94 separate districts) while the plaintiffs only have to win once. He further lamented the fact that universal injunctions “force judges into making rushed, high-stakes, low information decisions.” Gorsuch wrote separately to highlight some of the issues he sees with the practice of lower courts issuing such injunctions and calling on the Supreme Court to address the “underlying equitable and constitutional questions” regarding universal injunctions in an appropriate case.

In light of the opinion putting a renewed spotlight on universal injunctions, I wanted to outline how the Court should best address the issue if and when it takes a case concerning whether universal injunctions are constitutional and/or advisable.

Statewide Injunctions

Justice Gorsuch referred to the injunction issued by the district court as a “nationwide injunction,” a “universal injunction,” and even a “cosmic injunction.” He used the terms interchangeably. This was certainly not incorrect in this situation. The injunction prevented the federal government from applying a federal regulation against anyone, anywhere in the country. So it was certainly both nationwide and universal, and yes, likely even “cosmic.”

But there are many situations in which a universal injunction is not nationwide. For example, in Rodgers v. Bryant, the Eighth Circuit Court of Appeals upheld a universal injunction against an Arkansas law which prevented people from panhandling in a certain way—but did not likewise prohibit solicitations or protests in that same manner (read more about that here). In 1984 the Supreme Court upheld a universal injunction against a Maryland law which established limits on how much a charitable organization could expend in the process of fundraising activity (read more about that one here). And in 1925, the Supreme Court upheld a universal injunction against a Oregon law which mandated public school education. Each of these injunctions was just as much a “universal” injunction as the one issued against the public charge rule, but none of the three were “nationwide.”

Universal Injunctions

All of them constitute the same legal tool. A universal injunction is simply a court order that prevents the government from enforcing a law against anyone, not just the named plaintiffs. It is all about the parties. Sometimes a universal injunction is a nationwide injunction, as when a court enjoins the federal government from enforcing a law anywhere. But you can have universal injunctions against states and cities too. In either scenario a court is telling the government not to enforce a law against anyone, anywhere.

As a result, it is important to remember that what is said of one variety of universal injunctions, especially by the Supreme Court, will implicate the other varieties. Yet there are different considerations for statewide injunctions—at the very least conceptual differences. It is conceptually harder to grasp a district court judge issuing a universal injunction preventing the federal government from enforcing a law in all fifty states than it is to grasp a district court judge ordering the same for a singular state.

What Would Litigation Look Like Without Universal Injunctions?

In addition to considering statewide injunctions, it would be beneficial for the Supreme Court to consider what challenges to state laws would look like without the possibility of a universal injunction. Take for example an Indiana law which prohibits a liquor store from selling cold soda. If some stores (but not all) decide that the law is unconstitutional and sue, and a court awards an injunction, then they would have the right to sell chilled soda. But the stores who did not sue, would not have that right.

This means that those stores with money, like those part of a chain or association, would have an advantage when it comes to the ability to hire a lawyer. Those that just barely scrape by, like independent stores, might not even have that chance. Without a beyond-the-parties injunction, those unable to sue would be prohibited from selling cold soda. The only difference being one had access to justice and the courts, and others did not.

A Nationwide Injunction Without the Controversy

It will also be essential for the Supreme Court, when confronted with the issue of whether universal injunctions are constitutional, to consider the issue apart from the Trump Administration and the immigration context. Both, unfortunately, muddy the waters. It will serve the Court well to consider the first unarguably true nationwide injunction which was issued in 1963 by the U.S. Court of Appeals for the District of Columbia in Wirtz v. Baldor Electric Co.

There, the court considered a Department of Labor regulation which set a minimum wage for the electric motors and generators industry. Some in the industry challenged the regulation as a violation of the Administrative Procedures Act. The court agreed and turned to the remedy. The court decided that a nationwide injunction was appropriate because without such an injunction, those who successfully challenged the law would have a significant competitive advantage against those who did not. Providing relief just to the plaintiffs would allow them to outbid all their competitors for contracts because they would not have to pay their employees the minimum wage set that other companies would.

So, What’s the Point?

All of this is not to say that the Supreme Court should not limit the ability of district courts to issue universal injunctions or not provide further guidance to the lower courts. But the Court should not singularly focus on only the nationwide variety of universal injunctions when confronted with the issue.

Justice Gorsuch’s concurrence serves mainly as a call for the Court to address the issue of nationwide injunctions in the appropriate circumstance. Given all the controversy and the confusion surrounding nationwide injunctions specifically, and universal injunctions more broadly, the Supreme Court should step in and provide guidance to the lower courts. When that happens though, the justices would do well to remember that while all nationwide injunctions are universal injunctions, not all universal injunctions are nationwide injunctions.