A Key Tool for Stopping Government Tyranny Might become a Casualty of Next Week’s Birthright Citizenship Case
If the Supreme Court scraps universal injunctions, obtaining relief from unconstitutional laws will become much more expensive and time consuming for citizens
There is nothing ordinary about the Supreme Court’s upcoming oral argument on May 15. And it’s not because the underlying issue in the case is whether the president can overturn the 14th Amendment’s guarantee of birthright citizenship.
No. You should pay attention because the court might junk a long-established tool for fighting governmental abuse: the universal injunction. Deleting this remedy from the federal courts will lead to incalculable damage in efforts to hold governments accountable. Yes, governments—plural. This issue touches every government agent and agency, from the president to states and state officers to small town police departments.
Not only would it be a disaster for accountability, but it would also be a massive overreaction to a much narrower problem: some administrative peculiarities of nationwide injunctions. A “universal injunction” is a court order that benefits people other than the plaintiffs in the lawsuit, such as an order for the government to not enforce a law against anyone. A “nationwide injunction” is a “universal injunction” that applies to the federal government and benefits everyone in the country, not just in a geographic area. As explained below, we shouldn’t let some real problems with the nationwide variety to lead to an elimination of universal injunctions altogether.
Not Appealing Citizenship To Deny Citizenship
First, some brief background. Soon after starting his second term, President Trump issued an executive order instructing the federal government, starting on Feb. 19, to refuse to recognize children born in the United States as U.S. citizens if (1) their mother is either not lawfully in the country or is lawfully present but pursuant to a temporary visa and (2) their father is not a citizen or a permanent resident.
This brazen lawlessness challenges the extremely settled understanding of the 14th Amendment’s citizenship clause. It was immediately challenged in several lawsuits filed by individuals, nonprofit groups, and 20-plus states. In response, federal district courts quickly issued injunctions to prevent the new policy from going into effect. The injunctions applied to the government “universally,” protecting everyone who the policy might be used against, not just the specific plaintiffs or residents of the plaintiff states.
The federal government appealed these rulings to various appeals courts. Importantly for what’s happening on May 15, though, on appeal the government did not ask the injunctions to be overturned because of the merits of the citizenship issue. Instead, it asked that these preliminary rulings be narrowed so they only apply to the individuals actually involved in the lawsuits. This meant about half a dozen pregnant mothers and a few individual members of the nonprofits. The government also argued that the states were not proper parties, but, as a fallback, it asked that the injunctions only apply to babies born in those states, not in other parts of the U.S.
The appellate courts denied these narrowing requests, so the government asked the Supreme Court for the same thing. It didn’t ask for the court to take the whole case. Nevertheless, quite unusually for a matter in this posture, on April 17 the court set the matter for an old-fashioned full oral argument.
Although both the government and the different plaintiffs have addressed the underlying birthright citizenship question in their briefs, and some justices may ask about it on May 15, it is unlikely the court as a whole will rule on the constitutionality of the new policy at this stage. But it’s still surprising that this argument is happening. So why is it? Very likely because the court is particularly interested in the universal scope of these “nationwide injunctions” and whether injunctions can be “universal” at all.
Unconstitutional For Me, But Not For My Neighbor
Suppose that your city council adopts an ordinance banning political signs but not real-estate signs on residential lawns. That’s a classic content-based restriction on speech. If you sue and appeal to the First Amendment in federal court, you’ll have the city dead to rights. But would your victory help your neighbors? That depends on the scope of the court’s order, usually called an “injunction.” If it only commands the city not to apply the law to you, then it can still enforce the unconstitutional law against anyone else. But if the injunction says the city can’t generally enforce the law, then your neighbors will benefit. Again, this wider form of relief is often called a “universal injunction.”
Some might say: What’s the big deal? Even if the injunction only formally applies to one person, the city wouldn’t invite more litigation by continuing to enforce it against others, right?
It depends. This is why universal injunctions are extremely helpful in defeating government lawlessness. Sometimes after one lawsuit, the government backs down. But the more pigheaded the officials, the less likely that’s true. Plus, trial court rulings aren’t considered “binding precedent.” If the city doesn’t appeal, then no higher court will create any of that precedent. Therefore, the city could selectively choose not to appeal your case but continue enforcing the law against your neighbors—especially if your neighbors are the kind of people who lack the funds or connections to file a lawsuit, or mount a defense, in the first place (which is, let’s face it, most people). “Universal injunctions” are a way courts can defeat these tricks and enforce the law against the government and in favor of the rest of us. If the city enforces the law after receiving a universal injunction, the city’s officers and their attorneys face a whole suite of serious consequences: contempt, personal fines, nights in the clink.
It’s Injunctions All The Way Down
Even so, a loose coalition of government lawyers, law professors, and judges argue that universal injunctions are illegitimate. They downplay the gamesmanship evident in my sign example and play up the supposed lack of universal injunctions until relatively recently in history. They claim that federal courts simply don’t have the power to order the government not to do things to people beyond the plaintiffs in a lawsuit. They also argue that universal injunctions lead to forum shopping, hurried decision-making, confusion in government, and conflicting orders.
These critics are misguided but their ideologies are by no means homogeneous. Anyone of any party who has worked as a government litigator and had to deal with injunctions preventing their clients’ unlawful behavior—whether concerning free speech, religious liberties, prison conditions, or environmental laws—would be tempted by these siren songs. Indeed, the Biden administration, after enduring several injunctions involving policies such as Covid vaccine mandates and student loan deferrals, argued that universal injunctions are illegitimate. It’s therefore no wonder that several justices on the Supreme Court—who often are no slouches in declaring laws unconstitutional—have suggested that the court should junk universal injunctions altogether. Indeed, this includes justices appointed by both parties.
Frustratingly, however, most criticisms of universal injunctions concern a species of them—nationwide injunctions. In principle there is no difference between an injunction that orders a city not to enforce an unconstitutional law and one that does the same to the entire federal government. But today’s nationally obsessed politics being what they are, almost all the attention on this issue has fallen on whether injunctions can bind the United States government nationally.
Most of the claims that critics of universal injunctions make fall flat. Yet their criticisms of nationwide injunctions have some salience—but only because of some boring administrative reasons, not because those injunctions are somehow illegitimate. Ridding American federal courts of universal injunctions altogether because of some needed administrative tweaks of the small subset that are nationwide, however, would be throwing the baby out with the bathwater—in a case that actually concerns the rights of babies.
Equity Adapts
An injunction is a traditional tool of courts of equity, but not the DEI kind. In the English legal system, which the framers of our Constitution inherited and explicitly retained, “equity” is another form of adjudication in addition to “law.” Equitable relief grew out of the incomplete justice that the common law courts of England dished out. These courts issued only monetary damages, so litigants could go to the Lord Chancellor for “equitable” remedies that required the government to take other actions, or refrain from actions, to make the situation right. Further, neither the law nor equity were frozen in stone. Judges could fashion remedies to fit the situation—something today’s justices seem to have forgotten. Courts often claim today that only legislatures can create damages claims, for example. That would have sounded bizarre at the Founding.
Did the Lord Chancellor in England or judges in the early American republic issue universal injunctions to stop the enforcement of unlawful laws and policies? No. And for critics of universal injunctions that seems to be enough. If it didn’t happen in courts of equity in 1789, then it shouldn’t happen today. It is as though the Founders did not want to allow courts to do what they themselves knew courts were understood to do—apply law to new situations and come up with new solutions.
But you know what else courts didn’t do much of back then? Issue any injunctions, universal or otherwise, to stop officials from enforcing unconstitutional laws. That wasn’t really a “thing” at that time. Judicial review of unconstitutional legislation and behavior in 1789 was brand new and came much more in the context of awarding damages. Damages awards didn’t, and can’t, apply to parties beyond the plaintiffs. Injunctions to address constitutional wrongs were worked out as the young republic came to experiment with its new constitutional order. But no one argues an injunction that only helps one person is illegitimate. The same should be true of the universal variety.
The historical argument misses the essence of equity itself: its adaptability. From the beginning, equity meant fashioning whatever remedy fit the situation. This is not to say that courts of equity can order whatever they want. But the legacy the Founders left us, including courts with “judicial Power . . . in Law and Equity,” as the Constitution says, allows today’s judges to come up with solutions when faced with violations of that document. One of those is an injunction enforcing the Constitution to your benefit. Another is an injunction doing the same thing for you and your neighbors. Just as the Lord Chancellor found ways to help the Crown’s subjects in medieval England, federal judges today can find ways to remedy violations of our written Constitution.
Less Litigation
Further, there are many practical reasons for universal injunctions. For example, if a business challenges a price control rule—preventing it from selling a product at a lower price—is a court only supposed to find the rule invalid for that one business, allowing it to then undercut its competitors without them being able to match the new price? It makes far more sense for the court to invalidate the rule for everyone, rather than requiring a myriad of needless follow-up lawsuits.
In the same way, a universal injunction is particularly appropriate with birthright citizenship. Say the Supreme Court says injunctions can only help specific plaintiffs. What then? Every baby born in the U.S. to an affected mother must then file a lawsuit? What if the executive order is on the books for years? That’s likely millions of lawsuits. That’s nuts.
The critics say that these concerns can be mitigated by class action lawsuits, which can ask for injunctions protecting every person in an often-large group of people. In some cases, this is a valid alternative, but not all. Class actions have their own problems and are much more litigation intensive. There are notification rules, class-certification motions, and a myriad of other complexities. For straightforward questions of law, they are not the solution.
What about nationwide injunctions specifically? Here is where there are justified concerns. There are 94 judicial districts in the country. Challengers asking for nationwide relief can lose repeatedly in many different districts, but once one plaintiff wins, the law is enjoined, and the government must appeal. The solution, though, isn’t to get rid of universal injunctions altogether.
This is an administrative problem with administrative solutions. One that has been proposed is a system where similar injunctive requests in different districts go to a single multidistrict litigation panel, a solution that is used all the time in other contexts. Another is a streamlined appellate system and for the Supreme Court itself—which is taking a historically low number of cases—to act more often.
But we must remember that the court system is run in the interests of justice and freedom, for the benefit of citizens—not for the administrative convenience of the government.
Can you imagine the federal government acting like that hypothetical city did, not appealing loss after loss but nevertheless enforcing unconstitutional laws against multitudes of other people who cannot afford a lawsuit? Of course you can. It’s for that reason, and so many others, that the court needs to endorse universal injunctions for at least some occasions.
This isn’t assured. Most justices have said either they think universal injunctions are illegitimate (Alito, Gorsuch, and Thomas) or are skeptical (just about all the rest, including Democrat-appointed ones). But now that the issue is squarely before them, there’s hope that they’ll see the big picture.
Universal injunctions can be used excessively, they’re not for every case, and they should be easy for the government to appeal. But getting rid of them altogether is inviting tyranny of a kind the Constitution’s framers thought they had struck from the docket.
© The UnPopulist, 2025
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Yep, classic double-edged sword, here. But protecting against government lawlessness should rule the day.
Universal injunctions present some very thorny policy issues. One voter’s “tool against government lawlessness” is another voter’s “thwarting of the will of the electorate.” And it’s not always true, as the author seems to assume, that every issuance of an injunction actually means the government’s behavior is lawless. If that was the case, then no injunction would ever be overturned on appeal. And we know that’s not the case.
As a libertarian, I incline toward the former view, but I am not unsympathetic to the frustration arising from the combination of forum-shopping and activist judges.