The Myth of "Universal Injunctions"

Courts have the power to bind the parties before them, this includes the federal government.

I’m currently working my way through the oral argument for the birthright citizenship case. I’m beginning to believe that the entire point of the executive order targeting birthright citizenship was to serve as a vehicle to bring the issue of nationwide or universal injunctions to the Supreme Court. The whole point appears to have targeted something so obvious as to draw numerous legal challenges, then to appeal the inevitable injunctions so that the Trump Administration could defang the courts under the dubious argument that courts do not have the power to issue an injunction to bind the conduct of a party before the court as it relates to non-party members.

What do courts do?

The weight of authority suggests that federal courts have the power to hear “cases and controversies¹” This means that the courts can hear disputes from parties that arise under certain parts of the law, and then to issue a judgment that binds the parties. In the past, there was a distinction between courts of law and courts of equity which chiefly related to the types of relief the court could order. What’s important for our purposes is that courts of equity had the power to issue an injunction against a party to get that party to stop engaging in a particular type of conduct.

In other words, if your neighbor kept letting his chickens run onto your property, destroying your garden, you could go to the court of equity and ask for the neighbor to be enjoined (i.e., prevented) from letting his chickens run free, for example.

The power of English courts flowed from the king; as it happened in England, the courts were unable to enjoin the sovereign. It makes perfect sense; if your judicial power comes from the king, then you can’t tell the king what to do because you’re effectively asking the king to stop the king from engaging in a particular behavior. And, as the sovereign, the king can exercise his royal prerogative to do what he pleases.

“Universal” Injunctions

Returning to the Birthright Citizenship case, what the Trump administration is challenging is the ability for a federal district court, of which there are around 94, to issue an injunction in a case before that district court that prevents the action of the government from being taken in any district in the country.

The framing of this issue is extremely critical. If you frame the issue as I did above, it makes sense that a single district court judge should not be able to enjoin behavior that occurs outside of their judicial district. This is effectively what the Trump Administration hopes to persuade the court. Their argument is that individual plaintiffs should go before the court and certify a class action before such a ruling could exist, and then only in a way that affects the parties before the court. Their rational is that courts hear cases and controversies and provide remedies to individual plaintiffs.

However, this is bullshit. We don’t live in ancient common law England. We have no king. The federal government and the states are not the sovereign. The people are. The government is a single actor, that is empowered by the people to act through the actions of the President and his executive agencies, or in some cases Congress. The court has the power to enjoin the behavior of individual defendants. This includes, in certain circumstances, Congress and the President. It has to have this power; without such a power, the court cannot issue a judgment at all, at least to a certain degree. If you take away a court’s ability to enjoin a defendant, there’s not much the court can do to remedy a situation outside of monetary judgment. This inability to act is the entire reason why courts of equity came about in the first place. There are some types of conduct that cannot be remedied with money; in those cases, the court must be able to restrain the person engaging in the objectionable conduct. The court has to have the power to tell the actor to, as one might say to their kids, “knock it off!”

The “universal injunction” is merely the natural and expected consequence of the federal judiciary’s ability to enjoin the government as a single actor from engaging in objectionable conduct. This issue isn’t about “plaintiffs profiting without having to come to court,” it’s about the power of the judiciary to stand as a co-equal branch of government.

While most of the Justices were suspicious of the government’s motives in the first half of the oral argument that I’ve heard, it seems to me that only Justice Jackson figured this out in the most direct way possible. She was able to ask the Solicitor General directly about this issue, and he couldn’t give a good response. He complained about the government being forced to be bound by rulings while trying to paint a picture about how plaintiffs and non-plaintiff beneficiaries are somehow avoiding having skin in the game. It’s a lot of nonsense that stems from a complete lack of understanding (intentional or otherwise) of how courts work, and why they work the way that they do.

Make no mistake, a class action certified under Rule 23 does not remedy the wholesale prohibition of “universal injunctions.” There’s nothing to remedy; this is simply how American common law works. Does it have issues? Sure. But this is not an issue that can be fixed this way. The Trump Administration is seeking to gut the way our government has worked since the constitution was ratified, and arguably even longer than that. I never thought I’d see the day where progressives and liberals became the conservatives, but here I am advocating for what for all intents and purposes is a “conservative” (in a colloquial sense) approach.

A republic, if you can keep it

How do we solve this problem? We don’t. There is no way to prevent universal injunctions because to get rid of it means that the courts are not able to bind the federal government. I can’t believe I have to say this, but there is simply no way to allow for an injunction of behavior at all if we allow that behavior to occur as it relates to other plaintiffs. The government is a single actor; it doesn’t get to keep doing bad things because it’s doing them to another plaintiff. When we enjoin the neighbor from letting his chickens roam free, we’re not telling him that it is okay to let his chickens roam on another neighbor’s property until such time that that neighbor also sues to enjoin the behavior.

The court needs to shut this down. The government gets to occasionally play by slightly different rules. This is one time they shouldn’t be allowed to.

1. I phrase this sentence this way because I disagree. However, this is settled law, even if I think it is bullshit. Why do I think it is bullshit? Because nowhere in Article III does the constitution say that the court may *only* hear cases or controversies. The reality is that this limitation arose early on in the nation’s history when Jon Jay’s court declined to provide an advisory opinion to President Washington, on the basis that the court could not do so. However, there was a long history of english courts issuing advisory opinions to the King, and the Jay court itself arguably did so too. At best, the language of article III sets forth the types of cases or controversies that the court can hear, but that’s a far cry from a “universal injunction” against deciding something other than a case or controversy. See what I did there?