Injunction Junction, What’s The Courts’ Function?

The headlines have been around for several days now, so you probably know: SCOTUS sided with Trump, 6-3, in the case involving birthright citizenship. But, as is so often the case, the headlines miss the particular parameters of the case, what it did and didn’t do, and what it means going forward. There was also a bit of juicy SCOTUS bickering going on, which some outlets have reported. I’m here to break it down for you.

So, background: Trump entered Executive Order “Protecting the Meaning and Value of American Citizenship” on January 20, 2025, immediately after he was sworn in. The order decreed that, beginning 30 days after its issuance, a child born to a mother who is 1) in the United States unlawfully; OR 2) in the United States lawfully but not permanently (i.e., on a student or work visa); AND whose father is not a citizen or permanent resident is not a citizen of the United States. This was contrary to the common (though not universally accepted) understanding of “birthright citizenship”, the idea that any child born on American soil was an American citizen except children born of foreign diplomats and foreign soldiers.

The common understanding was rooted in the first words of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The italicized (by me) portion is where the EO finds its wiggle room, which is also not a new argument. In the 1898 decision in US v Wong Kim Ark, briefed here in a Wednesday Writs feature from 2019, the government there also relied upon the “subject to the jurisdiction thereof” words in its attempt to deny citizenship to a Chinese man born in California. But the Court looked to historic English common law in enshrining birthright citizenship as it was broadly understood prior to Trump’s EO: under English common law, all persons born within the King’s realm were subjects of the King, except for the children of “foreign ambassadors” or the children of “alien enemies” born on English soil but during “a hostile occupation of the king’s dominions.”

It was with this background understanding that suits were filed in Washington state, Maryland, and Massachusetts contesting Trump’s EO, in which injunctions were sought to prevent it from taking effect. The District Courts, one after another, granted the injunctions and ordered their decision to apply nationwide. The First, Fourth, and Ninth Circuit Courts of Appeal each affirmed, leading the government to file an emergency petition for a stay on each Appellate Court order.

The issue before SCOTUS was not whether the EO itself was unlawful or the correct interpretation of “birthright citizenship;” the question presented by the government was whether or not federal Circuit Court had the authority to issue injunctions that are controlling of the entire country. In a predictably split 6-3 decision, the Court says they do not.

The majority opinion is penned by Justice Barrett. The outcome is that the injunctions remain in place as to the named parties to three consolidated suits, but does not apply to the entire country. If legal stuff bores you, you can stop here with that takeaway and know that the actual issue of birthright citizenship and validity/constitutionality of the EO has not been decided.

At the outset, the Court makes clear that it is high time to address the fairly modern practice of “nationwide” injunctions by federal courts.

On multiple occasions, and across administrations, the Solicitor General has asked us to consider the propriety of this expansive remedy.

It is easy to see why. By the end of the Biden administration, we had reached “a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.” The trend has continued: During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions. As the number of universal injunctions has increased, so too has the importance of the issue.

(Citations omitted.)

Barrett cites The Judiciary Act of 1789, which confers upon federal courts jurisdiction over “all suits in equity” but states that this authority is limited to the types of equitable relief courts could provide at the time of the nation’s founding – which was based on the High Court of Chancery in 18th century England. And the Court here declares that the 18th Century High Court of Chancery in England did not have the power and authority to issue edicts that were binding on anyone other than the parties to a case.

Furthermore, Barrett explains, our federal courts seemingly understood this until the midpoint of the 20th century, with the first injunction that could be described as a universal ordered in the 1963 case of Wirtz v. Baldor Elec. Co, in which the DC Circuit enjoined the Secretary of Labor as to an entire industry. That case involved a wage determination, but in analyzing the breadth of the application of its decision the Baldor case, interestingly, mused as follows:

It is no doubt true that some forms of litigation directed against administrative rules and orders can immediately benefit only those persons who bring the litigation. For example, if an alien successfully attacks a directive that he be deported, and obtains an order enjoining his deportation on the ground that the administrative procedures applied were defective, or that the governing statute was misinterpreted, the relief given runs only to him. But the principles announced by the court — at least if it is the Supreme Court which speaks — should be followed by the administrator in all cases of essentially similar character. And certainly if it is a lower court which has spoken, that court would ordinarily give the same relief to any individual who comes to it with an essentially similar cause of action against the
administrator. The rule of law requires no less.

Following Baldor, Barrett notes, 127 universal injunctions were issued through 2023 – with 96 of them issuing during the terms of Bush the second, Clinton, Obama, Biden and Trump. “The bottom line?” writes Barrett, “[T]he universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority.”

The remainder of the majority addresses -and in part, lambasts- the dissents. But before we dig into what the 3 libs had to say, we’ll discuss the concurrences.

The first is from Thomas, joined by Gorsuch. Thomas writes specifically to discuss the “complete relief” principle (which Barrett’s majority opinion also touches on in reference to the dissent.) Complete relief is the idea that an injunction should do no more than is necessary to redress a plaintiff’s injury. However, Thomas cautions, this is a ceiling, and not a floor; it is not a requirement that an injunction provide such “complete relief” but a rule that it should do no more than that. Thomas is stating that an injunction may validly do less. The “complete relief” concept is applicable to the case at bar because, for an individual plaintiff – say, a pregnant woman here on a temporary visa- a nationwide injunction is not necessary to provide her with the relief sought. An injunction that applies only to the parties would solve her problem and grant her child citizenship upon birth. Granting the same to all similarly situated individuals in the country is not required in order for her relief to be “complete.” Does this mean that thousands or millions of cases must be brought in order for all similarly situated parties to achieve the same result via injunction? Under this analysis, yes, potentially; but the Court is not, at present, apparently concerned with judicial economy.

Alito chimes in with his own separate dissent, which Thomas also signs onto. Alito’s concern is that the majority doesn’t touch on two issues he sees as important in the case at bar: the ability of a state to bring suits on behalf of its citizens (third-party standing), and class certification (applicable because class action suits are batted about as a potential better avenue for the opponents of the EO.) As to third party standing, Alito hints that he does not think a state could properly bring suit on behalf of its citizens because of the requirement that “the litigant has a “close relationship” to the right holder and that there is some “‘hindrance’” to the right holder’s ability to “protect his own interests.” (Citations omitted.) Alito further stresses that courts should be careful to strenuously apply the procedural requirements of class certifications and cautions generally against the potential abuse of third-party standing and class actions that might arise from this ruling, in his opinion. He leaves little doubt that he doesn’t see these as legitimate avenues for the challenges to this EO.

Kavanaugh concurs separately as well, for some reason.

The principal dissent is by Justice Sotomayor, joined by Kagan and Jackson. Where the majority steadfastly avoids discussing the constitutionality of the EO, the dissent offers a full-throated opinion of its illegality. Sotomayor points out that the reason the government sought only a partial stay – that is, they attacked only the universal aspect of the stay and not as it applied to the individual parties – was because to do so the government would have to prove the EO’s constitutionality, which it cannot do.

Noting that a party requesting a stay of injunction must show irreparable harm if made to await a final adjudication on the merits, Sotomayor derides the government’s position on such:

What grave harm does the Executive face that prompts a majority of this Court to grant it relief? The answer, the Government says, is the inability to enforce the Citizenship
Order against nonparties. For the majority, that answer suffices… The problem, however, is that the Executive Branch has no right to enforce the Citizenship Order against anyone.” (Citations omitted.)

Turning to the majority’s opinion that a universal injunction is in opposition to equity principles dating back to English law, Sotomayor argues that the Court’s decision actually “runs directly counter to the point of equity: empowering courts to do complete justice, including through flexible remedies that have historically benefited parties and nonparties alike.” She takes a much broader view of the limits of equitable remedies, and points to the historic “bills of peace” as precedent for injunctive relief that reached beyond solely the parties to the case. Bills of peace were used in cases “‘where the parties [were] very numerous, and the court perceive[d] that it [would] be almost impossible to bring them all before the court; or where the question is of general interest, and a few may sue for the benefit of the whole.’” Ortiz v. Fibreboard Corp., 527 U. S. 815, 832 (1999)

Addressing this in the majority opinion, Barrett does not agree that universal injunctions are similar to bills of peace. Per Barrett, “[U]nlike universal injunctions, which reach anyone affected by legislative or executive action—no matter how large the group or how tangential the effect—a bill of peace involved a “group [that] was small and cohesive,” and the suit did not “resolve a question of legal interpretation for the entire realm.” Barrett does not elaborate on how small a group must be for a bill of peace to be available (she opines that it is more analogous to a modern class action suit,) but even so, Sotomayor points out, the group affected by the EO is two classes of unborn children, which is a fairly specific class.

In sum, Sotomayor’s dissent is this:

“The equities and public interest weigh decisively against the Government. For all of the reasons discussed, the Citizenship Order is patently unconstitutional. To allow the Government to enforce it against even one newborn child is an assault on our constitutional order and antithetical to equity and public interest.

***

The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.

While Justice Barrett concedes that Sotomayor’s dissent “focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity,” she makes no such concession to the dissent penned by Justice Jackson, to whom she delivers quite the headline-making, high-toned verbal slap:

JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever. Waving away attention to the
limits on judicial power as a “mind-numbingly technical query,” post, at 3 (dissenting opinion), she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to “order everyone (including the Executive) to follow the law—full stop.”

Calling the majority opinion “an existential threat to the rule of law,” and calls the deep-dive into the history of equitable relief and common law a “mind-numbingly technical query” and a “smoke screen” of legalese from which she dissents “with deep disillusionment.” Admittedly, Jackson’s dissent is long on rhetoric and short on scholarly legal analysis – which she seems to concede in a footnote: JUSTICE SOTOMAYOR thoroughly explains why restricting judges in this manner is legally and historically unfounded. My goal is to highlight the myriad ways in which the majority’s newly minted no-universal-injunctions limitation also subverts core constitutional norms and is fundamentally incompatible with the rule of law.”

This case is important not because of what it does or does not say about birthright citizenship, but for its limit on the use of nationwide injunctions to circumvent the dictates of executive orders. It’s a dance that has become very familiar in the politically tumultuous years of the past two decades-plus. Whatever the correct analysis, it does not feel like it is how the law is meant to work. But with wheels of justice grinding ever-so-slowly, the compulsion to short-cut is understandable when the stakes are so high.