The Universal Injunction Debate

Ryan Karnoski, the named plaintiff in a lawsuit challenging the Trump Administration’s decision to ban transgender people from serving in the military, reportedly said of the suit, “I don’t think it’s about me as an individual at all, I’m a piece of this larger battle.” Indeed, the court barred the federal government from implementing the policy not just against him, but against all people. In that case, the court entered a universal injunction, also called a national or nationwide injunction. Institute for Justice’s Adam Shelton explains that a universal injunction is “a court order that prevents the government from enforcing a law against anyone.” Traditional injunctions affect only the parties in the lawsuit, but when a court halts a federal law or regulation through a universal injunction, that order prevents enforcement anywhere. Universal injunctions target regulations and executive orders more frequently than other types of laws. In recent years, perpetual congressional gridlock has led presidential administrations to deploy their regulatory powers more expansively to address neglected issues, such as immigration, the environment, and civil rights. In turn, these executive actions have led to an increase in universal injunctions. According to the U.S. Department of Justice, federal district courts issued at least 55 universal injunctions during the Trump Administration, compared to 19 during the Obama Administration and 12 during the Bush Administration. These court orders temporarily prevented the implementation of Presidents’ cornerstone policies, such as the Obama Administration’s deferred immigration action programs and the Trump Administration’s third travel ban. The proliferation of universal injunctions is, however, controversial. Skeptics, such as U.S. Supreme Court Justice Neil Gorsuch, caution that “the routine issuance of universal injunctions is patently unworkable” for two reasons. First, courts place federal policies on hold through “rushed, high-stakes, low-information decisions” rather than “careful deliberation.” Second, the process might favor parties challenging federal actions, as these plaintiffs can sue in any district court and can present the case multiple times across the country. Conversely, once the federal government suffers “a single loss,” often at the hands of a single judge, the challenged policy stalls. Supporters of universal injunctions, however, argue that the measure plays an important role in curbing unlawful executive branch action that oversteps presidential power or disregards democratic norms and principles, such as the separation of powers. In such cases, supporters claim that universal injunctions are necessary to prevent harm to thousands or millions of people. The policy debate is vigorous but nonpartisan, since universal injunctions affect both Democratic and Republican administrations. Underlying this policy debate is a legal one: Are universal injunctions even lawful? This week’s Saturday Seminar examines the scholarly discussion around the lawfulness of universal injunctions. Some scholars focus their arguments on Section 706 of the Administrative Procedure Act (APA), which authorizes federal courts to “set aside” unlawful agency actions. Other scholars base their arguments in the U.S. Constitution