This is the fourth and final post in an introductory series on universal injunctions and judicial engagement. In the first three posts I explored the history of universal injunctions, why they are an important tool for the judiciary, and in what situations judges should consider issuing such broad relief. But in this final piece I will explore the broader debate over universal injunctions and what that debate means for the role of the judicial branch.
The debate over universal injunctions is something of a microcosm. While it is certainly a contentious and critical debate in its own right, it is also a stand-in for a much larger debate. A debate with which we at the Center for Judicial Engagement are quite familiar. A debate over the role of the judiciary in our constitutional system.
This is not a new debate by any stretch of the imagination. People have questioned the role of the judiciary since the constitutional convention. In fact, both of the other branches have expressed dissatisfaction with the Supreme Court since the beginning. It is nothing new and it is certainly nothing unexpected. It is part of the design.
As Hamilton explained in Federalist 78: “the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.” The Founders knew that the legislature would likely go beyond its constitutional limits, and empowered the courts to void any law “contrary to the manifest tenor of the Constitution.” It is not unreasonable that those branches that passed and signed the law, hopefully in good faith, would be less than pleased by a court making such a determination. They certainly were not pleased in the early years of the republic and they are not now. And for as long as they have been displeased, there has been debate over the judiciary’s role.
The debate over universal injunctions is just the most recent iteration of this debate. Those whom a court has enjoined through a universal injunction would disagree with the court’s ruling with or without a universal injunction. The universal injunction is not even the main issue. Losing the case is what upsets people, the scope of the court’s remedy simply compounds that.
So the debate about universal injunctions is not about the substance of any particular ruling. Instead, the debate over the propriety of universal injunctions goes to the core of the judiciary’s role in the constitutional system. It asks whether the judiciary can ensure that people without access to the courts can receive protection from unconstitutional laws, or whether the government, by default, can enforce unconstitutional laws against everyone who has not yet challenged those laws.
Creating this type of default rule seems to be what many who oppose universal injunctions want. In fact, for many who oppose universal injunctions as a legal tool, whether the challenged law is constitutional or unconstitutional is unimportant to the question of whether a judge should issue a universal injunction. To them, it is all about whether the Constitution allows judges to issue injunctions protecting nonparties.
These critics believe that the role of a judge is to measure a challenged law against the Constitution and if there is conflict, apply the Constitution, the higher law. Thus, the court is not declaring a law unconstitutional or “striking down” a law but choosing to apply the Constitution instead. By explaining the outcome of a case as simply choosing to apply the higher law, it becomes impossible for any case to have an impact beyond the plaintiff, other than by potentially setting precedent. This system of judicial review would significantly reduce the role courts play in our constitutional system. The problem is, the system these critics describe is not the one the founders envisioned. But more on that in a bit.
As noted above, many who oppose universal injunctions argue that they are an invention based on a change in perception of the judicial role. But universal injunctions are neither new nor tied to any particular change in the public’s perception of the courts.
As for being a new invention, Professor Samuel Bray argues in his seminal article on the topic that universal injunctions did not really come about until the 1960s. Justice Thomas, and to a certain extent Justice Gorsuch, have accepted his findings as true. But other scholars disagree. Professor Mila Sohoni penned an entire law journal article showing that courts have issued injunctions protecting nonparties for at least a century.
To be sure, such injunctions have become more popular since the 1960s. But it is also the case that the federal government takes a more active role now, and in the 1960s, than it did in the 1800’s. So maybe such injunctions were rarer in the past, not because they are inherently improper, but rather because they were rarely needed. But this is a possibility that Bray does not consider in an in-depth manner.
Bray instead ties the invention of universal injunctions to a shift in perception about the judicial role that took place during the early 1900’s. He explains that, historically, injunctions were thought of as a defensive measure against a threatened enforcement action by the government. But now, Bray argues, injunctions are perceived as “free standing challenges to a statute, regulation, or order.” He theorizes that this shift in conception allowed judges to issue nationwide injunctions. He argues that when they were thought of as defensive actions it was all about the particular plaintiff and the imminent enforcement. But now, the primary focus is on whether the law is constitutional, not on the threatened enforcement action, or so Bray argues at least.
Yet even Bray admits that, at times, courts in the 1800s issued injunctions for “general” reasons rather than plaintiff-specific reasons. This cuts against the argument that there was a shift in perception in thinking about injunctions as primarily defensive actions to thinking about them as challenges to the constitutionality of a law. For example, the Supreme Court in 1886 in Norton v. Shelby County upheld an injunction, but its rationale for doing so was not tied to the invalidity of the law with respect to the particular plaintiff. The Court explained that a law that violated the Constitution was no law at all. “[I]t confers no rights, it imposes no duties; it affords no protection; it is . . . as inoperative as though it had ever been passed.” This sweeping language is in line with what you might see in an opinion declaring a law facially unconstitutional—or an opinion issuing a universal injunction. Bray makes no attempt to distinguish this case as a unique occurrence. He seems to accept that, while not common, this language was certainly not revolutionary.
This language also cuts against Bay’s second “shift in perception” that led to the emergence of universal injunctions. Bray, like the other critics mentioned above, argues that the idea of a court “striking down” a law is new. He argues that courts use to perceive themselves as simply applying the Constitution when a law conflicted with it. To him, this shift in perception helps explain the creation of universal injunctions.
The reason Bray believes that this shift led to the emergence of universal injunctions is because the change in language, and the change in perception, shifted the focus of the courts. He argues that the shift exemplified the change from focusing on the plaintiff and the situation to focusing on the law and that such a shift supported the issuance of universal injunctions. In other words, if the focus is on the law and not on the plaintiffs, then the remedy should focus on the law and not on the plaintiffs. A universal injunction prevents the enforcement of the law against anyone—it is focused on the unconstitutionality of the law, not the person who challenged the law. While Bray is correct in asserting that there has been a change in the language used, this change is more about perception and language than substance.
How do we know that? Well Publius told us!
In Federalist 78, Alexander Hamilton, now of musical fame, explained: “No legislative act, therefore, contrary to the Constitution, can be valid.” He further 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 Court “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.
So then the question becomes: Are universal injunctions in line with this understanding? My answer: yes. It would not make 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 actually 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.
The debate over universal injunctions is a microcosm of the bigger debate over the role of the judiciary. The result of this smaller debate will impact the larger debate. As explained previously, without universal injunctions facial challenges would be meaningless. There is also certainly something to be said for keeping with the original role envisioned for the judiciary. The judiciary is supposed to be “bulwarks of a limited Constitution against legislative encroachments.” Universal injunctions can help the judiciary keep to that role.
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 being able to enforce even a plainly unconstitutional law against anyone who lacks the resources to challenge that law.
So next time you come across a debate about universal injunctions, remember that it’s not just a debate about a complex legal tool. And its not just a debate about presidents and immigration. It is a debate about what role the judiciary should play in our constitutional system.
Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.
This is the final post in a four-part series exploring the relationship between universal injunctions and judicial engagement. Check out the first, second, and third posts as well. And while you’re at it, check out a special post responding to Justice Gorsuch’s opinion about universal injunctions & and an article in Law360 about the staying power of universal injunctions. And, lastly, check out our podcast about the nationwide variety of universal injunctions featuring Anthony Sanders, the Director for the Center for Judicial Engagement, who was joined by Scott Keller, the former Solicitor General of Texas and a current partner at Baker Botts in D.C.