


Federal judges across the country, selected deliberatively by activist organizations, have issued more than 25 universal injunctions halting enforcement of President Donald Trump‘s executive actions since January on issues ranging from immigration to higher education to national security. These injunctions have significantly hampered Trump’s ability to govern the nation as he promised he would during the 2024 election. The Supreme Court put an end to the practice Friday, vacating a lower court’s order that halted implementation of Trump’s birthright citizenship executive order.
Justice Amy Coney Barrett’s decision makes it explicitly clear that the majority’s holding has nothing to do with the underlying legality of Trump’s birthright citizenship executive order, a policy that attempts to deny citizenship to children born by certain classes of aliens who give birth in the United States. The primary dissent, written by Justice Sonia Sotomayor and joined by Justices Elena Kagan and Ketanji Brown Jackson, focuses almost exclusively on the legal merits of Trump’s order which it describes as “patently unconstitutional” and completely contrary to “the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.”
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Setting the legal merits of Trump’s order aside, Barrett’s decision is far more concerned with the legality of the nationwide injunction the district court entered against the Trump administration. The order went as far as to forbid even the development of legal guidance on how states should implement the policy. As a threshold question, Barrett addressed whether the Judiciary Act of 1789 bestowed the power to issue universal injunctions on federal courts. She rightly concluded that it does not.
Federal courts have always had the power, and have exercised it, to enter injunctive relief between the named parties in a given suit. Federal civil procedure also has a well-developed body of law, Rule 23 class actions, allowing for similarly situated possible plaintiffs to be covered by one case. But universal injunctions go far beyond class action jurisdiction, enforcing remedies on everyone, not just smaller groups which, by rule, must have something in common that sets them apart from the general public.
Barrett methodically reviewed the historical record, establishing that universal injunctions did not exist in the High Court of Chancery in England, on which the Judiciary Act of 1789 was modeled, and did not exist for decades after that until 1963. Even then, universal injunctions stayed relatively rare, avoiding Supreme Court attention, until the presidency of George W. Bush. Since that time, the number of universal injunctions has exploded.
As Justice Brett Kavanaugh explains in his concurrence, the growth of universal injunctions in recent years is understandable. “That trend is in part the result of the increasing number of major new executive actions by recent Presidential administrations (of both political parties) that have had difficulty passing significant new legislation through Congress,” Kavanaugh wrote. In other words, as the legislative and executive branches have become increasingly incapable of working together to pass legislation, the executive branch has increasingly taken it upon itself to assert new powers or use older grants of power in novel ways, and federal courts have been forced to step in an adjudicate which actions are legal and which are not. But this does not empower judges to step beyond the power granted to them by Congress.
Barrett reminded Jackson of this fact in a stinging rebuke to her separately signed dissent. “Federal courts do not exercise general oversight of the Executive Branch,” Barrett wrote. “They resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
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“Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law,” Barrett continued. “Justice Jackson would do well to heed her own admonition: ‘Everyone, from the President on down, is bound by law.’ That goes for judges too.”
Going forward, lower court judges still have the power to enjoin the executive branch as to the named parties involved in a suit. Barrett acknowledges that this will often be difficult when the plaintiff is a large state and a federal policy is bound to affect the state if the government is allowed to go forward with the new policy in other jurisdictions. But Barrett wisely advised judges that they should not seek to set national policy and should instead cabin their injunctive relief as narrowly as possible.