Universal Injunction Update

Adam Shelton · August 10, 2021

On January 20, the first day of the Biden Administration, the Department of Homeland Security announced a 100-day pause on deportations. Almost immediately Texas filed a lawsuit challenging the deportation moratorium as unlawful. And on January 26, a federal district judge agreed and granted an injunction. But instead of simply granting an injunction preventing the government from enforcing its pause on deportations in Texas, the district court granted a universal nationwide injunction that prevented the government from applying the pause on deportations anywhere.

Less than one week in, the Biden Administration had its first universal injunction—an injunction that protects parties and nonparties alike. Universal injunctions plagued President Trump during his four years in office. And these broad injunctions plagued President Obama too. But it was during the Trump Administration that these types of injunctions became controversial and engendered fierce debate.

Given the quickness with which the Biden Administration received its first universal injunction, it seemed likely that the universal injunction “problem” would continue. But it hasn’t—though, to be sure, courts have continued to issue and uphold universal injunctions, nationwide and otherwise. Still, the number of these injunctions has dropped off.

Yet, debates over these injunctions, if no longer raging, are still simmering beneath the surface. In June, a federal judge in Wisconsin issued a universal nationwide injunction against the Biden Administration’s loan forgiveness program for farmers that distributed funds based on race. A few weeks later another federal judge in Florida issued another nationwide injunction enjoining the same program. Both cases are pending, and the scope of the injunction will remain a live issue as the cases proceed.

Just last month a federal district court issued a universal nationwide injunction against the Deferred Action for Childhood Arrivals (DACA) program. The district court enjoined the Department of Homeland Security from “approving any new DACA application and granting the attendant status.” The Biden Administration has already vowed to appeal. This could also require the Supreme Court to determine the fate of such injunctions. And as noted previously, both Justice Thomas and Justice Gorsuch have already signaled their disapproval of such injunctions.

These cases, coupled with the new CDC eviction moratorium and the forthcoming litigation concerning it, make it very likely that the Supreme Court will soon have to take up the issue of when, if ever, universal injunctions are appropriate. And at the very least the controversy over these injunctions might return to the forefront. As such, it is important to keep a few considerations in mind.

First, those debating universal nationwide injunctions should keep in mind that the nationwide aspect of these injunctions is unproblematic—at least from a legal perspective. The agreed-upon legal issue with these injunctions is that they protect parties and nonparties alike. That is, rather than limited to the party that challenged the law, the injunction applies to and protects everyone. Which is why some have proposed that these injunctions be termed defendant-oriented injunctions rather than plaintiff-oriented injunctions. Thus, the same issues exist whether the injunction is nationwide, statewide, countywide, or even citywide.

To be sure, there are practical and optical problems with universal injunctions that span nationwide that do not exist when the injunctions only span a state, county, or city. It just feels more problematic when a single district court judge can stop a policy of the federal government across the whole country—especially when every state is covered by only a single federal circuit. More local injunctions may just seem a little more reasonable. But from a legal perspective, they are the same device and raise the same concerns.

Second, sometimes such injunctions can be necessary to ensure fundamental fairness. Take, for example a 1963 D.C. Circuit case: Wirtz v. Baldor Electric Co. There, the U.S. Court of Appeals for the District of Columbia 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 Procedure Act. The court agreed and turned to the remedy. The court decided that a universal 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 that other companies would.

Without such an injunction all the competitors would still be harmed by an unlawful regulation. If this situation were the norm, it would create a rush to the courthouse every time a law or regulation is enacted in an attempt to obtain a business advantage. This also would create an advantage for larger companies that have the legal departments and funds to challenge multiple laws, while smaller companies without easy access to courthouses would have to compete with companies that had protection from unlawful or unconstitutional laws while those smaller companies had to comply with them.

Lastly, these broad injunctions fit with the role of judges as envisioned by the Constitution. In Federalist 78, Alexander Hamilton, now of musical fame, explained: “No legislative act, therefore, contrary to the Constitution, can be valid.” He also explained that denying this would affirm “that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.” Thus, it is the duty of the courts “to declare all acts contrary to the manifest tenor of the Constitution void.” Is there really any substantive difference between a court declaring a law void, or holding that an act is invalid, and a court “striking down” a law? Not really.

It would make no sense for a court to declare a law void but then give a remedy only to a single person. When a court finds that a law contradicts the Constitution, that law is invalid. Without a universal injunction, the relief would go only to the person challenging the law. But that would allow the government to keep applying an invalid law, a “law” that was never a law. The simple truth is that sometimes universal injunctions are the only way to fulfill the judiciary’s role as contemplated by Alexander Hamilton in Federalist 78.

Universal injunctions, nationwide or otherwise, are not going away. And while they have been used less often against the Biden Administration there are cases working through the judicial process that could make it to the Supreme Court. Eventually, the Supreme Court will have to resolve whether these injunctions are within the bounds of the Constitution. Until then, it is important to keep these considerations in mind when thinking about the propriety of such injunctions.


Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.