Stop It! No, You Stop It! In Major Legal Shift, SCOTUS Says No More Universal Injunctions

The U.S. Supreme Court ruled on Friday, June 27, that federal district courts may not issue “universal” injunctions (the term the Court used instead of “nationwide” injunctions), as it decided that doing so is beyond their power under the Judiciary Act of 1789. The platform was three cases challenging President Donald Trump’s executive order interpreting citizenship under the 14th Amendment as not to include those born of mothers who are illegally or temporarily in the country unless the father is a citizen or a permanent resident.

The Supreme Court did not rule as to whether the executive order was lawful or whether the Constitution itself under Article III permits universal injunctions. The Court also did not decide whether state governments have standing to request relief for all the citizens of their states. The Court is expecting the lower courts to develop decisions on those issues for its review.

In short, the Court relied on a history that includes no use of nationwide or universal injunctions in the 18th or 19th centuries. An “injunction” is “equitable” relief as distinguished from “relief at law,” which would include trials and damages and follow a longer-term decisional line. Injunctions are designed to stop what is going on or what is about to happen (for example, the implementation of an executive order) to provide a court time to decide issues. The court granting an injunction must find that the petitioner is “likely to succeed on the merits” and that the petitioner will experience “irreparable harm” if the relief is not granted and outweighing any harm that might be caused to the respondent if the court grants the relief. The Court cited several law review articles and other materials that have questioned the legality of universal injunctions. Most importantly, though, was the Court’s citation of its own justices, who have together repeatedly raised the issue of the legality of the universal injunction, including Justices Clarence Thomas, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and Brett Kavanaugh.

The effect of the decision is that any universal injunction issued by a federal district court must be limited to application to the parties before the court and not made universal by application to nonparties across the United States. Therefore, as that was the only holding, we need to examine every nationwide (now corrected by the Court to the term “universal”) injunction still in effect, whether under a previous administration or the current one.

For example, cases involving diversity, equity, and inclusion; higher education; immigration; Office of Federal Contract Compliance Programs; and the Occupational Safety and Health Administration have included universal injunctions that were either issued or requested. This ruling affects all parties. In some of the pending cases, the government might change previous positions or defer enforcement against nondecisional parties until the matter is decided by the courts; in others, enforcement might now occur, potentially leading to additional actions filed by other parties for injunctive relief. Class actions are a vehicle by which some laws could be challenged, but procedural hurdles often prevent the use of that mechanism.

Our Labor & Employment Compliance team is ready and able to help and will keep you updated on developments. If you have any questions or if you have been affected by a universal injunction and are now unsure how to proceed or of the status of the injunction or the law, we are here to help you through this shifting landscape.