Nationwide Injunctions: A hot topic you won’t debate in dinner-time conversations

The subject is unlikely to trigger dinner table debates and more likely to trigger yawns in some people. But nationwide injunctions are now hot topics in the legal and political worlds, largely thanks to the policies of President Donald Trump.

The House of Representatives last week passed legislation, primarily with Republican votes, designed to rein in how federal judges use them. What are nationwide, or universal, injunctions? When imposed by a court, they prohibit a defendant in a lawsuit from taking some action against not just the other party in the lawsuit but also against non-parties–anywhere in the country. The House bill would limit the injunctions to parties before the court instead of applying them nationally.

Nationwide injunctions have been imposed by courts for decades. They have become significant, if controversial, tools of federal courts trying to hold accountable individuals, governments, organizations or businesses whose actions may run afoul of laws or the Constitution.

Nationwide injunctions have become increasingly controversial as presidents of both parties find some of their policies blocked by those injunctions, usually at the behest of their political opponents. Those policies have included vaccine mandates, immigration, abortion, census questions, aid to black farmers, birthright citizenship, and more.

That the number of nationwide injunctions has increased dramatically in recent years is well-documented. Last year, the Harvard Law Review published a study reporting that from 1963 until 2023, there were 127 injunctions, of which 92 were imposed from 2001 to 2023. And of the 127 total, more than half– 64– were issued against Trump Administration policies in his first administration. Trump may surpass his own record this year given the flood of executive orders he has signed in just three months and the ensuing lawsuits now totaling well over 100 involving the firing of probationary federal employees, cut offs of grants and foreign aid, deportations and birthright citizenship.

These injunctions have critics and supporters. Critics say they are politicized tools in the hands of partisan judges. For example, of the 64 issued against Trump policies, 92.2 percent were by Democratic-appointed judges; of the 14 issued against Biden policies in the first three years of that administration, all were issued by Republican-appointed judges, according to the Harvard study.

Critics also contend the injunctions stymie development of the law, undermine class action lawsuits and thwart the government from implementing its policies. Justice Clarence Thomas has called these injunctions “legally and historically dubious” and he has been joined in his criticism by Justice Neil Gorsuch.

But there are also supporters. They say there are certain laws that should be applied evenly across the nation. Those laws include immigration and clean water and clean air. Nationwide injunctions, they add, promote consistency, and the rule of law by blocking illegal government action.

Amanda Frost of American University Washington College of Law wrote in a law review article that the need for this type of injunction is particularly great "in an era when major policy choices are increasingly made through unilateral executive action affecting millions."

And Stephen Vladeck of Georgetown University Law Center, author of “The Shadow Docket,” has written: “Consider the pending cases challenging President Trump’s effort to restrict birthright citizenship: Do we really think that parents should have to challenge that policy one child at a time? Would it make any sense at all for the scope of birthright citizenship to differ in Arizona, New Mexico, and Texas simply because those three states fall into three different federal circuits?”

The Trump administration appears to answer “yes” to those questions in three emergency applications now before the Supreme Court concerning Trump’s executive order limiting birthright citizenship. The administration urges the justices to restrict injunctions imposed by three different courts only to the individuals and members of organizations who brought the lawsuits challenging his order.

“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere. Only this Court’s intervention can prevent universal injunctions from becoming universally acceptable,” the administration’s lawyer told the court.

The Justices may not be ready to tackle head-on the debate over nationwide injunctions in these emergency applications, but what they do say will be closely watched for clues to the fate of these injunctions.

Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.