Nationwide injunctions, where nonparties are equally bound to legal rulings as the parties in the case, are a legal remedy that was thrust into the spotlight back in 2018 in the Supreme Court case Trump v. Hawaii. In this case, the Supreme Court upheld President Donald Trump’s travel ban against immigrants from seven specific countries from the Middle East and Africa. Justice Clarence Thomas suggested in the case that the lower courts issuing injunctions that prevented the Trump administration from barring everyone from immigrating to the United States, not just the parties relevant to the case, was fundamentally wrong. There has been considerable scholarship and debate over the usage of nationwide or universal injunctions, especially in recent times as judges equip themselves with the tool to stop legislative or executive actions.

First and foremost, it is critical to understand the difference between nationwide and universal injunctions. The Institute for Justice sums up the difference as “all ‘nationwide injunctions’ are universal injunctions. But not all universal injunctions are nationwide injunctions.”  Universal injunctions can apply to only certain states or cities, meaning they are not nationwide, or they can apply to anyone in the country, which would give them the characterization of nationwide. However, the two phrases are often used interchangeably and the Institute notes that it is not incorrect to use them as such, and they will be used interchangeably in this article as well.

Since coming into the spotlight in Trump v. Hawaii, nationwide injunctions have been the focus of legal scholars and judges alike. Despite conservative justices railing against the usage of these injunctions, Trump appointee US District Judge Drew Tipton recently attempted to utilize one in a decision to freeze President Biden’s halt on deportations. It was a major goal of the Trump Administration to decrease the usage of nationwide injunctions or prevent them altogether, with former Attorney General William Barr saying that “the legal community and the broader public should be more concerned, particularly about this trend of nationwide injunctions.”

Republican legislators have also attempted to decrease the ability of the courts to use nationwide injunctions in their rulings, pointing out how the Trump Administration was hit with over 50 injunctions during their time in office whereas the Obama Administration only faced 19 and the Bush Administration, 12. Senator Ted Cruz (R-TX) said in 2020 that judges in the “resistance movement” tried to use nationwide injunctions to “put themselves in the way of Trump policies that they happen to disagree with.”

The impact of nationwide injunctions on the Trump Administration has been notable. In addition to Trump v. Hawaii, nationwide injunctions were called into question again when the Trump Administration’s attempted to hold funding from localities that were designated as “sanctuary cities” and refused to work with federal officials regarding illegal immigrants and deportation. These plans were thwarted by a federal court barring the Department of Justice from executing this funding policy, and this ruling was subsequently upheld by the Seventh Circuit. “The court held that a nationwide injunction was justified here because the case presented a narrow issue of law that was not fact-dependent and would not vary from one locality to another,” Amanda Frost wrote in an article titled “In Defense of the Nationwide Injunction.”

It is not just the Trump Administration that has had actions halted as a result of nationwide injunctions. Conservative federal judges in Texas utilized nationwide injunctions to slow down Obama administration policies regarding healthcare and immigration. Most famously, President Obama’s executive order to increase the scope of DACA and introduce more protections for illegal immigrants was stopped by a district court armed with a nationwide injunction. 

One of the major tenets of the anti-nationwide injunction movement is that they are a relatively new principle and do not have the same grounding or precedent that other common judicial and legal philosophies have. Law professor Mila Sohoni attempted to refute some of these claims in a Harvard Law Review paper titled “The Lost History of the ‘Universal’ Injunction,” in which she argued that the practice of nationwide and universal injunctions had a longer-lasting lineage and deeper roots in legal precedent than previously assumed by legal scholars and the Trump Administration alike.

In the paper, she pointed to various cases in which rulings similar to the universal injunction had been seen. In one ruling in particular, Journal of Commerce and Commercial Bulletin v. Burleson, the Supreme Court granted a universal injunction against the Postmaster General of the United States and prevented the body from exercising a certain statute against all potential parties applicable, not just the particular journal. Other cases such as Pierce v. Society of Sisters and West Virginia Board of Education v. Barnette were examples of how district courts issued universal injunctions that were upheld by the Supreme Court. Both of these cases were argued and decided before 1950.

However, even proponents of the nationwide injunction preach the necessity of approaching and using such measures with caution. Aforementioned legal scholar Amanda Frost in her piece “In Defense of the Nationwide Injunction”, argued that they “come with significant costs and should never be the default remedy in cases challenging federal executive action.” Frost conceded that nationwide injunctions were often the source of forum shopping, a legal practice in which a plaintiff in a case where multiple courts have jurisdiction will choose to have their case heard in the court they believe will rule the most favorably. Despite this, Frost claims that there is nothing in the Constitution that prevents courts from issuing rulings that extend past the original parties of the case, and that nationwide injunctions are necessary for protecting many Americans from unconstitutional governmental practices. 

Unsurprisingly, Professor Sohoni’s piece was the subject of criticism from opponents of the nationwide injunction. Professor Samuel Bray is one of the leading figures within legal academia who opposes the usage of the nationwide injunction: in fact, his testimony before the House Judiciary Committee about the relative novelty of nationwide injunctions as a legal remedy was cited in the Justice Journal’s previous article on the subject. His piece, aptly named “In Response to the Lost History of the ‘Universal’ Injunction” pushes back on Sohoni’s thesis that there was, in fact, legal grounding and a deeper history of the universal injunction than what was previously believed. Although Bray concedes that Sohoni was correct in identifying Lukens Steel So. v. Perkins as a 1939 case that exercised a nationwide injunction, he argues that the significance of the case is overstated. He also claims that cases such as West Virginia Board of Ed v. Barnette and Lewis Publishing (which encompassed Journal of Commerce v. Burleson) would be more appropriately classified as class action suits instead of universal injunctions.

Bray’s arguments are pushing a narrative of their own: by painting the nationwide injunction as a modern legal development instead of a practice deeply grounded in history, it is easier to question or strip them of their legitimacy. The ultimate goal of opponents of the practice is to dissuade district and federal judges from using them in their rulings, and making them appear ahistorical has been a strategy in order to deplatform nationwide injunctions. 

It is not a stretch of the imagination to say that the practice of universal injunctions has caused quite the stir and controversy among legal and political circles. As President Biden continues to attempt to reverse immigration policies initiated by the Trump administration, the question of how far he and the courts will be able to address matters regarding immigration, deportation, and sanctuary cities, and how will likely it is that these issues will come down to battles over the usage of the universal injunction.