Judicial Remedies After CASA

Opposition to federal courts’ use of so-called nationwide or universal injunctions has been a rare point of bipartisan agreement across administrations in recent years. Both the Biden and Trump Administrations have opposed the use of this equitable remedy through which any lone, unelected federal judge—sitting for life in a courtroom in some corner of the United States—can order a halt to an administration’s national policy priorities. A nationwide injunction can stop the application of a federal policy or program not just to the parties in the dispute before a judge—or even just to anyone within the local or regional jurisdiction of the judge’s courtroom—but to anyone across the entire nation.

Against this backdrop of bipartisan administration opposition to nationwide injunctions, the U.S. Supreme Court ruled 6-3 in June to end the federal courts’ ability to use these injunctions. The Supreme Court’s decision in Trump v. CASA was hardly surprising, but it was nevertheless still dramatic—lopping off in one fell swoop what had become an increasingly common remedy for federal courts to issue when they found federal policies and programs to be unlawful.

In knocking down such a widespread judicial practice, the CASA decision was a monumental one. But in another, perhaps more important sense, the decision is both much more symbolic and much less definitive about when federal judges can award universal relief than its harsh disapproval of nationwide injunctions might initially seem. Litigants still have remaining to them at least three legitimate pathways to obtain such relief, although once these pathways come into greater use by courts, questions will likely be raised over whether the Supreme Court should try to restrict or even foreclose these other pathways as it did the nationwide injunction in CASA.

CASA came to the Supreme Court when the Trump Administration asked the Court to block several lower federal courts from issuing nationwide preliminary injunctions prohibiting the Administration from applying President Donald J. Trump’s executive order limiting “birthright citizenship.” That executive order declares that, contrary to the guarantee under the U.S. Constitution’s Fourteenth Amendment that anyone born in the United States is a U.S. citizen, some persons born on U.S. soil are not citizens if their parents are not also citizens or lawful residents of the United States. The order prohibits federal agencies from accepting state-issued documentation from these persons under benefit programs that require proof of citizenship.

After various states, individuals, and civil rights organizations challenged President Trump’s executive order, three lower courts ruled that the order violates the citizenship clause of the Fourteenth Amendment. And all three courts issued nationwide injunctions prohibiting Administration officials from implementing the order against anyone, not just the parties who had filed the legal challenges.

Rather than seeking Supreme Court review of the lower courts’ decisions on the merits, the Trump Administration asked the Court only to limit the lower courts’ injunctions to the parties. The Court did just as the Administration asked, without ruling at all on the lower courts’ conclusions that the executive order violated the Fourteenth Amendment.

In an opinion by Justice Amy Coney Barrett, the Court held that a 1789 statute conferring jurisdiction on the federal courts to issue injunctions did not authorize the courts to provide preliminary injunctive relief to anyone harmed by a law or policy—so-called universal relief—but instead to limit relief only to the parties before a court. Justice Barrett reasoned that such relief had no historical analogue in the practices of equity courts in 1789. She asserted that it was not until the 20th century that federal courts began issuing nationwide injunctions, and not until this century did they begin to do so with any frequency. As a result, such relief could not have been contemplated by the members of the U.S. Congress who passed the Judiciary Act of 1789.

In a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor began by rebuking the majority for accepting the Administration’s argument that it would be harmed by nationwide injunctions. All the injunctions did, she insisted, was require the Administration to follow the plain meaning of the Fourteenth Amendment as reflected in long-standing Court precedents from as early as the 19th century and executive-branch interpretations. Justice Sotomayor also insisted that nationwide injunctions had a firm historical analogue in early equity law and that the Court had itself approved their use in several notable 20th century constitutional law cases. Justice Sotomayor emphasized that nationwide injunctive relief was justified in the CASA cases because the constitutionality of the executive order was not “open to reasonable disagreement” and, as a result, the Administration could not show that it would be harmed by any injunction, no matter how broad. She conceded, though, that nationwide injunctions would not necessarily be justified in other, more “typical” cases.

Despite the majority’s decision to put a halt to judges’ use of nationwide injunctions, Justice Barrett’s opinion did qualify the Court’s holding in several important respects. As a result, even after the Court’s decision in CASA, litigants still have three valid pathways remaining to obtain nationwide relief in cases challenging an administration’s policies and programs. Already, in fact, litigants have successfully followed some of these pathways in the lower courts.

First, the CASA Court recognized that sometimes it will be necessary, to provide “complete relief” to a party, for a court to issue a broad injunction that beneficially affects non-parties. In some cases, such a broad injunction may effectively need to function as a nationwide injunction. This was an especially important qualification because the state litigants in CASA argued that only by issuing a blanket ban could the courts remedy their injuries. The states argued that without an injunction with nationwide effect, they would face impossible administrative tasks, such as having to track down the immigration status of every child and the child’s state of birth when administering federal benefits programs that require citizenship verification. Rather than addressing the states’ argument and the Administration’s counterarguments, the Court returned the cases to the lower courts to decide whether anything less than an injunction sweeping as broadly as the entire country would provide the states with complete relief. Soon after CASA was decided, the U.S. Court of Appeals for the Ninth Circuit upheld what it called a “universal” injunction prohibiting enforcement of the executive order, concluding that the injunction was necessary to provide “complete relief” to several states.

Second, the Court acknowledged that a district court can enjoin the enforcement of laws and policies against a nationwide class of individuals similarly situated to a plaintiff if the court properly certifies a class comprising such individuals. No class had been certified in any of the cases at the time the Supreme Court handed down its decision in CASA. Under federal courts’ procedural rules, for a court to certify a class action, it must conclude that class members are sufficiently numerous that they cannot all be made parties to a case, that their claims present common questions of fact or law, and, most importantly in class actions seeking injunctive relief, that the government “has acted or refused to act on grounds that apply generally to the class,” making appropriate relief  “respecting the class as a whole.” Just days after the Court’s decision in CASA, a district court provisionally certified a class action and issued a preliminary class-wide injunction that prohibits the Administration from applying the birthright citizenship order to anyone whose citizenship it purports to deny.

Finally, the Court recognized in a footnote what may be the most significant pathway toward universal relief—not an injunction, but the remedy known as a “set aside.” The Administrative Procedure Act (APA) provides that courts “shall … set aside” unlawful agency action, including rules. Questions have arisen as to what, exactly, it means for a court to set aside an action that applies broadly. Does a set-aside order benefit only the plaintiffs who filed suit? Or instead, does it benefit anyone and everyone because it nullifies—that is, sets aside as unlawful—the agency action?

The long-prevailing understanding has been that when a court sets aside agency action, it renders that action a nullity as to everyone—or, to use the increasingly common legal terminology, it “vacates” that action “universally.” But the U.S. Department of Justice under both the Biden Administration and Trump Administration has adopted a revisionist position—increasingly defended by leading conservative scholars—that a set-aside order is a party-specific, not a universal, remedy. The Supreme Court justices themselves may be divided on the issue. Of the justices who have addressed it in opinions or during oral argument, three have suggested they adhere to the universal vacatur interpretation: Chief Justice John J. Roberts and Justices Brown Jackson and Brett Kavanaugh. On the other hand, three Justices have expressed strong skepticism of that position: Justices Neil M. Gorsuch, Clarence Thomas, and Barrett.

Broad as a set-aside remedy may be, however, it does come with an important limitation. It is available only in cases challenging final agency action. That would not include a direct challenge to the executive order challenged in CASA. The order was issued by the President, who is not an “agency” under the APA. Of course, presidential directives are effectively subject to challenge when an agency does take final action—such as by issuing a rule—to implement an executive order. A federal judge recently set aside, for example, a controversial agency rule on asylum that implemented a presidential directive. Other federal judges have likewise used the set-aside remedy to block controversial agency rules that, before CASA, they might have blocked by issuing a nationwide injunction.

The Trump Administration can be expected to complain that federal judges are making an end run around CASA by using the APA’s set-aside remedy and other pathways. But all three alternative pathways are permissible ones. That said, for each of these pathways, questions will undoubtedly arise as litigants seek these remedies more routinely—and if the Trump Administration challenges courts’ use of these remedies. What exactly does a litigant need to show, for example, to demonstrate that only a remedy as broad as a nationwide injunction will provide it with “complete relief”? When, if ever, may a court withhold complete relief because countervailing equities favor the government, as a concurring opinion by Justices Thomas and Gorsuch emphasized will sometimes be the case?

With respect to class actions, will courts bring the same rigorous scrutiny to bear on classes certified to give broad injunctive relief as they have in recent years to classes certified in cases seeking enormous monetary awards to businesses? In a concurring opinion in CASA, Justice Alito insisted that courts must undertake a “rigorous analysis” before certifying class actions.

And questions about remedies under the Administrative Procedure Act will likely come to the fore in the Court at some point in the years ahead. It is hard to say now how the Court will ultimately decide whether, or when, a judicial ruling that sets aside an agency rule under the APA nullifies or vacates the rule for everyone.

We can also expect some general questions that cut across the three remaining pathways. How do rulings about judicial relief, for example, intersect with the standing doctrine that allows litigants to have courts hear their claims in the first place? Does CASA signal a Court that is also likely at some point in the future to reign in third-party standing—that is, the standing of states or organizations to assert the rights of other individuals rather than themselves or their own members?

If litigants are able to clear the standing hurdle, additional questions will arise over whether and through what remedial devices courts can issue nationwide relief on a preliminary basis—pending further litigation on the merits—rather than as a final remedy. Will current standards for the awarding of preliminary relief versus final relief change? And when courts do issue preliminary relief, how readily will the Supreme Court review their rulings on the Court’s so-called emergency docket, as Justice Kavanaugh in his CASA concurrence insisted the Court must do to maintain uniformity in national law?

CASA was one of the most significant decisions of the last Supreme Court term. It is troubling that it will have the likely effect of allowing some unlawful executive action to go largely unchecked by the courts in the future, as courts may draw back from issuing the nationwide relief that is needed to serve as a check against unlawful nationwide policies. That said, how substantial an impact CASA will have in the future is something that is difficult to predict with any precision. The Court did not foreclose all avenues for litigants to obtain nationwide relief. Arguably, in most cases where nationwide injunctions have been imposed against federal government policies in the past, courts could still have issued nationally applicable remedies under pathways left open by CASA. We are already seeing courts doing as much in the litigation over the birthright executive order.

Without question, then, federal courts can be expected to continue to issue valid orders halting the implementation of unlawful national policies and programs. And they will continue to do so at least unless, or perhaps until, a future Supreme Court decision follows in CASA’s footsteps to narrow further the judiciary’s ability to provide a constitutional “check and balance” over executive power.

Cary Coglianese is the Edward B. Shils Professor of Law at the University of Pennsylvania Carey Law School, where he is the director of the Penn Program on Regulation and the co-advisor to The Regulatory Review.

Matthew Lee Wiener is the Visiting Distinguished Lecturer of Administrative Law at the University of Pennsylvania Carey Law School. He serves as the co-advisor to The Regulatory Review.