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Universal Injunctions on Appeal
Fischman, Joshua B.
Fischman, Joshua B.
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Abstract
In Trump v. CASA, the Supreme Court held that district courts do not have the authority to issue “universal” injunctions that protect nonparties. While the Court put an end to this controversial practice, it did not eliminate the need for interim relief when the executive branch engages in legally questionable action with broad impact. These concerns are especially acute in light of President Trump’s barrage of executive orders in the first few months of his second administration and the dozens of legal challenges that have been filed in response. Going forward, courts will need to grapple with whether and how to provide preliminary relief to thousands or millions of affected people while the legality of executive action is being litigated.
Importantly, the Court’s holding did not affect the availability of several alternative forms of preliminary mass relief. District judges may still issue injunctions that incidentally protect nonparties, as long as the remedies are necessary to provide complete relief to named parties. The Court left open the possibility that organizations may use associational standing to seek injunctive relief on behalf of their members. Challengers raising similar factual and legal claims may file class actions, and courts may provide temporary injunctive relief prior to certification. The Court disclaimed that its holding would have any effect on universal remedies in cases challenging agency action under the Administrative Procedure Act. Finally, in some instances it may be infeasible for the government to provide different treatment to protected and unprotected parties, so even a limited injunction could effectively force the executive to temporarily suspend enforcement.
Given these alternatives, it remains to be seen how much Trump v. CASA will limit the availability of mass relief, and also how it will affect some of the problems associated with universal injunctions. Litigants challenging federal policies often engaged in judge-shopping, filing petitions for universal injunctions in single-judge districts so that they could draw a sympathetic district judge. Because denials were only preclusive as to the specific petitioner, different litigants could also file petitions in multiple districts to enjoin the same policy, giving them “multiple bites at the apple.”