The Legal Trick Being Used to Trip Up Trump Judges are issuing orders that block government policies from taking effect anywhere in the country. Jed Rubenfeld explains what to do about them.
Judges are issuing orders that block government policies from taking effect anywhere in the country. Jed Rubenfeld explains what to do about them.
It’s been a relatively good week for President Donald Trump when it comes to the Supreme Court. The Court ruled more or less in his favor on three different challenges, including upholding on jurisdictional grounds his deportations of migrants to El Salvador. But the most pressing legal issue for Trump—the “nationwide injunctions” that have hamstrung many administration priorities—remains unresolved.
According to one count, only some 27 “nationwide injunctions”—orders issued by judges that block government policies from taking effect anywhere in the country—were issued throughout the twentieth century. Yet against Trump, counting both administrations, judges have so far handed down at least 79.
Supporters of these injunctions claim that they are a necessary check on unconstitutional actions by the administration, such as Trump’s moves to end birthright citizenship. The White House and its Republican allies on Capitol Hill say that district court judges are subverting the will of the people and want the Supreme Court to limit or halt the issuance of these injunctions.
Who is right? Let’s take it one step at a time. What are nationwide injunctions? Are they really being used against Trump more than other presidents? And are they legal?
The term nationwide injunction—a.k.a. “universal injunction”—has no legal definition, but it generally refers to a judicial order prohibiting the government from enforcing a measure anywhere in the country. That means that the ruling goes beyond the particular plaintiffs who brought the case, effectively allowing district courts to halt a policy from being applied anywhere in the U.S.
For example, in February, a federal district judge in Maryland issued a nationwide injunction barring enforcement of Trump’s “Protecting Children from Chemical and Surgical Mutilation” order. In March, a federal district judge in Washington State issued a nationwide injunction barring enforcement of the administration’s transgender military ban.
Again, these injunctions from Maryland and Washington State prevented these Trump administration policies from taking effect anywhere in the U.S., full stop.
But is it true that nationwide injunctions have recently proliferated and that judges are more prone to issue them against Trump than other presidents?
Absolutely.
During President Obama’s first four years, according to a Harvard Law Review count, only 12 nationwide injunctions were handed down; during President Biden’s, 14. But in Trump’s first administration, there were 64, and in Trump 2.0, as of March 27, there were 17, with more on their way.
Of course these numbers by themselves don’t prove anything. It could be that partisan judges are blocking a democratically elected president’s agenda. Or Trump could be taking more unconstitutional actions than his predecessors. Or both.
Are nationwide injunctions legal? Yes, at least under current law. But there’s scholarly dispute about this, and some Supreme Court justices appear ready to forbid or restrict them.
Nationwide injunctions are “legally and historically dubious,” said Justice Clarence Thomas after a Hawaii district court had shut down Trump’s “Travel Ban” in 2017. A month ago, Justices Alito, Gorsuch, Thomas, and Kavanaugh joined an opinion suggesting that universal injunctions violate “foundational” limits on judicial jurisdiction.
The legal problems with nationwide injunctions are twofold. The first is geographical. A Hawaii district court has jurisdiction over Hawaii, but how can it tell anyone what to do outside Hawaii?
Perhaps geographical restraints on federal courts’ power should be taken more seriously. But the way things work now is that if a court in a given case has valid jurisdiction over the defendant, the court can order that defendant to take action (or refrain from taking action) anywhere.
This way of doing things has its benefits. Suppose you wrote a book and, without your consent and without paying you anything, some New York publisher started printing it and selling it nationwide. You could sue in New York, and the court would have jurisdiction to order the publisher to stop selling the book all over the country. The law would not require you to bring 50 different suits, one in each state.
The deeper problem with nationwide injunctions is that they extend to persons who are not litigants in the case before the court. As Justice Gorsuch put it in 2023, courts “traditionally” order relief solely for the litigants, whereas through nationwide injunctions judges assert “the authority to issue decrees that purport to define the rights and duties of sometimes millions of people who are not parties before them.” The Biden administration itself argued against nationwide injunctions on this ground.
By itself, the fact that a judicial order may protect or help people beyond the named plaintiffs isn’t controversial.
In class actions, courts can order relief for tens of thousands of similarly situated people. Even in a traditional single-plaintiff nuisance case, a court order stopping a neighbor from blaring music at deafening decibels could benefit all the surrounding homeowners, not just the particular plaintiff.
But nationwide injunctions are different. They are issued in non-class-actions, they go beyond what’s necessary to protect the plaintiff, and they expressly order the legal protection of people not before the court.
For example, when district courts issue nationwide injunctions against the administration’s military trans ban, they are ordering the Department of Defense to stop enforcing that ban against anyone. To critics, this allows district judges—to quote from Justice Gorsuch again—to “govern. . . the whole nation from their courtrooms.”
Nevertheless, it is highly unlikely the full Court will forbid all injunctions that protect non-parties. The Supreme Court itself has on numerous occasions upheld or directed the issuance of nationwide injunctions. According to one scholar, the justices themselves issued such an injunction as far back as 1913.
Predictably, those who support nationwide injunctions under one president tend to change their tune under another. Many Trump supporters bashing today’s nationwide injunctions might have been delighted when, in 2023, a district judge in Amarillo, Texas, issued a nationwide stay suspending the FDA’s approval of the abortion-inducing drug mifepristone.
Conversely, UC Berkeley School of Law dean Erwin Chemerinsky recently criticized the administration’s efforts to rein in nationwide injunctions, arguing that “the alternative of limiting federal court relief to the particular plaintiff or the specific federal district court is far worse.”
But back in 2023, when that Amarillo judge stayed mifepristone nationwide, Chemerinsky wrote that “the case reveals underlying problems in the judicial system” and that “[l]itigants should not be able to handpick a judge who then can issue a nationwide injunction throwing the entire country into chaos.”
But something definitely needs to be done at the district court level, where the issuance of injunctions has become staggeringly partisan.
According to a Harvard Law Review study, of the 64 nationwide injunctions issued by district judges during Trump’s first term, 59 were granted by judges appointed by Democratic presidents. Of the 14 such injunctions issued during the Biden administration, all were granted by judges appointed by Republican presidents. In Trump’s current term, Georgetown Law professor Steve Vladeck found that “the vast majority of rulings against Trump. . . have come from judges appointed by Democratic presidents.”
Nationwide injunctions not only create the appearance of a partisan judiciary, which is bad enough. They harness the reality of our partisan judiciary, allowing “Democratic judges” to stop Republican measures even as “Republican judges” stop Democratic measures.
Making matters still worse is the asymmetry between losing and winning a nationwide injunction. The administration could in theory win 10 times, but as long as one plaintiff wins before one of the hundreds of district judges sitting anywhere in the country, the executive order is universally blocked and the president’s agenda comes to a halt.
So if Mary sues in Massachusetts to stop a Trump executive order and loses, that doesn’t stop John from suing in Hawaii to stop the same order. The result is forum shopping and a concomitant power for a single district judge to make policy for the entire country.
One solution would be a rule forbidding district court injunctions that reach further than necessary to protect the parties before the court, unless a higher court—a circuit court or the Supreme Court—authorizes it.
Appellate courts could still be permitted to issue nationwide injunctions, or instead their injunctions could be limited to their geographical jurisdiction. Either way, the Supreme Court would retain full authority to order nationwide injunctions.
The Supreme Court could lay down such rules, or Congress could enact them. Either way, the Trump administration has a point when it says that lower courts have grabbed too much power in blocking the president’s attempts to carry out his agenda. This is a real constitutional problem—but fortunately one with constitutional remedies—that will haunt presidents of both parties until it’s dealt with.
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