The Universal Injunction Debate

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Can a single judge lawfully prevent the entire government from enforcing a regulation?

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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.

  • In a recent article featured in the Yale Journal on Regulation Online Bulletin, University of Virginia School of Law professor John Harrison offers two interpretations of Section 706 that weigh against courts issuing universal injunctions. On the one hand, Harrison argues that if “set aside” means to vacate or invalidate, universal injunctions do not allow courts to reverse statutory law. Rather, universal injunctions command agencies not to enforce the regulation at issue, limiting the regulation’s effect without changing the content or purpose of the law. On the other hand, Harrison contends that Section 706 does not mean courts should invalidate agency action at all. Instead, he claims that “set aside” asks courts to treat the challenged action as “legally ineffective”—empowering the court “not to decide in accordance with that action”— rather than making it ineffective.
  • Mila Sohoni of the University of San Diego School of Law reaches the opposite conclusion in a George Washington Law Review article. Sohoni explores the APA’s legislative history, text, and structure, which she finds indicate that “set aside” means “the act of recognizing the invalidity of rules of general applicability,” including federal regulations. By allowing courts to invalidate regulations, she argues, the APA authorizes universal injunctions because the federal government cannot enforce an invalid rule against anyone. If policy concerns justify reform to this authorization, Congress, rather than the Supreme Court, should lead the effort, according to Sohoni.
  • The APA alone cannot resolve the dispute over the validity of universal injunctions, according to Ronald M. Levin of Washington University School of Law in St. Louis. In an essay in The Regulatory Review, Levin claims that “virtually everyone” agrees that “set aside” in section 706 means that an agency rule is totally nullified and “no longer applies to anyone”—the same practical effect as a universal injunction. But, this statutory language is paired with the traditional legal principles such as “equitable remedial discretion,” which empowers courts to deny injunctions, “even where the literal language of a statute seems to require it,” Levin explains. The APA cannot settle the universal injunction debate, Levin suggests, because the balance between these two legal principles allows courts, but does not require them, to grant universal injunctions.

Other scholars base their arguments in the U.S. Constitution.

  • Federal courts lack the constitutional basis to decide legal disputes for nonparties and should never grant universal injunctions, claims University of Notre Dame Law School’s Samuel L. Bray. In a Harvard Law Review article, Bray explains that Article III of the Constitution empowers federal courts “to decide cases for parties, not questions for everyone.” With universal injunctions, however, plaintiffs seek out the court most likely to enter a nationwide ruling, demonstrating a “shop ’til the statute drops” mentality, Bray writes. Instead of issuing universal injunctions, Bray argues that federal courts should limit the scope of their decisions to the party in front of them and rule on challenged regulations or laws “only with respect to the plaintiff.”
  • When a lawsuit alleges that a federal law, regulation, or policy violates the Constitution, universal injunctions are generally not the appropriate remedy, according to Howard Wasserman of the Florida International University College of Law. In a Lewis and Clark Law Review article, Wasserman argues that courts enter universal injunctions based on an incorrect belief that judges are responsible for attacking defective laws and regulations. Wasserman contends, however, that the constitutional role of the courts is to protect the person or group challenging the law from government enforcement. Universal injunctions are too broad, Wasserman emphasizes, because they prevent officials from enforcing the law against “any person anywhere,” rather than just against the plaintiff.
  • Scholars who oppose universal injunctions focus on the courts’ constitutional role in resolving individual disputes without addressing the courts’ constitutional responsibility “to declare the meaning of law for everyone,” Amanda Frost of the American University Washington College of Law suggests. In a New York University Law Review article, Frost argues that universal injunctions are consistent with existing legal principles and are supported by historical precedent. Frost concedes that universal injunctions come with costs, but claims that the injunctions have the potential to protect “thousands of people, most of whom will not be able to file suit” from harmful laws and regulations.
  • In a Texas Law Review article, Alan M. Trammell of the Washington and Lee School of Law argues that preclusion—a legal doctrine that prevents a party who has litigated an issue from re-litigating the same issue again in a later lawsuit—undermines constitutional objections to universal injunctions. Trammel contends that the same constitutional arguments made against universal injunctions would fail against preclusion—a widely embraced and well-established doctrine. Although he claims that universal injunctions are lawful, as a prudential matter, Trammel recommends courts only enter universal injunctions when the government acts in bad faith and fails to follow established law.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.