Ending Nationwide Injunctions

Today, the Supreme Court will hold a special session to review President Trump’s executive order ending birthright citizenship. As John argued at Civitas Outlook, the best reading of the 14^th Amendment, guided by the original understanding of its ratifiers, supports the traditional rule that all born within the United States (with few exceptions) are American citizens. But the justices may not reach this question because Trump v. CASA raises the preliminary question whether federal trial judges can issue “nationwide” injunctions that halt government policy throughout the country. We expect the Supreme Court to remind inferior judges of the limits on their powers and end this unconstitutional practice.

In ruling against many of President Trump’s executive orders, district courts have frequently issued nationwide injunctions, halting major initiatives such as Trump’s suspension of foreign aid, removal of undocumented immigrants affiliated with the Tren de Aragua gang, layoffs of federal employees, a ban on transgender soldiers, the end of racially discriminatory programs in higher education, and cuts and freezes in federal spending.

The aggressive use of nationwide injunctions against Trump has provoked intense controversy, particularly since most of these injunctions have been issued by district judges appointed by Democratic Presidents. Hence, the Supreme Court has accepted the Trump administration’s invitation to address the issue. Likewise, the House has passed legislation to limit the use of nationwide injunctions and the Senate is considering a bill by Senator Chuck Grassley (R-IA) to similar effect.

What are nationwide injunctions, and why are they controversial?

There is no accepted definition of the term “nationwide injunction.” But it has often been used to refer to an injunction against the government that prevents it from implementing a statute, regulation or (more commonly now) executive order against any relevant persons and organizations anywhere in the country, whether they are actual parties to the litigation and even if relief could be limited to the parties actually before the court.

There is simply no historical basis for nationwide injunctions. According to Justice Neil Gorsuch’s concurring opinion in Labrador v. Poe (2024), nationwide (he calls them “universal”) injunctions are “a relatively new phenomenon.” They were “virtually unknown” during the presidency of Franklin D. Roosevelt – “those twelve eventful years covering the Great Depression, the New Deal, and most of World War II.” Justice Gorsuch states, “even as late as President Obama’s administration, some estimate that lower courts issued only about 19 universal injunctions.” In 2019, then-Attorney General William P. Barr stated that the federal courts had “issued only 27 nationwide injunctions in all of the twentieth century.”

In sharp contrast, in April 2024, the Harvard Law Review identified 127 nationwide injunctions since 1963, with 96 of them packed into a three-year period from 2020 to 2023. It counted six nationwide injunctions under the second Bush administration, 12 under Obama, a staggering 64 under the first Trump administration, and 14 from the first three years of Biden. So far, as of the end of March, just 10 weeks into Trump’s second term, federal judges had issued 17 such injunctions.  

Beginning with Justice Clarence Thomas’ influential concurrence in Trump v. Hawaii (2018), at least five Supreme Court Justices have expressed serious doubts about both the constitutionality and the wisdom of lower court nationwide injunctions. Justice Gorsuch, joined by Justice Thomas, criticized them in a biting concurrence in Dep’t of Homeland Security v. New York (2020). Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, followed suit in a dissent in the recent Dep’t of State v. AIDS Vaccine Advocacy Coalition (March 5, 2025). Alito described the district court’s temporary restraining order halting the administration’s disbursement of foreign aid funds as “an act of judicial hubris” and asked, “[d]oes a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?”

And in 2022, Justice Elena Kagan told a law school audience, “It just cannot be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal [appellate] process.” Pointedly, Kagan added that in Trump’s first term, plaintiffs “used to go to the Northern District of California, and in the Biden years they go to Texas.” Activists on both the Left and the Right seek out ideologically sympathetic trial court judges, hoping they would be more likely to issue nationwide injunctions that would stymie implementing a President’s policy indefinitely, perhaps forever.

Nationwide injunctions, coupled with the forum-shopping that Kagan identified, thus tend to bring the entire judicial system into disrepute. Opponents of Trump who cast themselves as defenders of “the rule of law” ought to consider carefully the damage that nationwide injunctions are causing to the fabric of the law. Nationwide injunctions issued without clear necessity by trial judges appointed by Democratic Presidents convey that these judges are overtly hostile to Trump and enable administration critics to conduct lawfare outside the realm of ordinary politics.  

Nationwide injunctions, whether in permanent injunctions (PIs) or temporary restraining orders (TROs), are meant to be merely provisional remedies designed to keep the status quo in place. But they can block presidential (and congressional) policies indefinitely as the litigation slowly unfolds. A Texas district judge issued a nationwide injunction in 2015 blocking President Obama’s move to expand the Deferred Action for Childhood Arrivals (DACA). Yet, when Trump sought to end DACA during his first term, district courts blocked that move as well, ensuring that the program carried over into the Biden administration. Yes, our Constitution builds in many veto points against unlawful or unconsidered actions, including judicial review. But it is not designed to paralyze the presidency and to balk the will of voters at every turn.

What are the constitutional and policy objections to nationwide injunctions?

Nationwide injunctions are at war with the Constitution’s structure and history in two ways. First, they amount to a claim of judicial supremacy that ignores the equal role of the other branches of government in interpreting the Constitution. Second, they transform the power of the federal courts to render judgment on the parties before them into a supervisory power over the workings of all of the government. The Supreme Court should reject nationwide injunction on either ground.

In the first of its constitutional failures, nationwide injunctions seek to prevent the President from advancing his reading of the Constitution. The Constitution does not establish any branch of the federal government as supreme in interpreting the Constitution. Instead, each branch must read our nation’s highest law while carrying out its unique constitutional responsibilities. Judicial review, for example, emerges from the court’s sole authority to decide “cases or controversies” arising under federal law. Congress must interpret the Constitution when it decides whether to enact bills into law.  Presidents must determine the meaning of the Constitution when they veto legislation or “take care that the laws are faithfully executed.”

Presidents regularly interpret the Constitution. In the very first administration, for example, President Washington had to decide whether to sign legislation creating the first Bank of the United States, the institutional predecessor to the Federal Reserve.  Washington also had to decide whether he could terminate treaties with France in the course of issuing his Neutrality Proclamation, and he had to determine whether the Whisky Rebellion amounted to an insurrection that justified calling out the militia.

In interpreting the Constitution, the branches cannot force each other to adopt their favored reading of the law. They must respect each branch’s freedom to carry out its unique functions. Just as the President cannot order the courts how to decide cases, the Supreme Court cannot force a President to veto or sign a bill. Andrew Jackson, for example, vetoed a re-authorization of the Bank of the United States, even though Congress believed the law constitutional by passing it, two past Presidents had signed earlier versions of the law (Washington and James Madison), and the Supreme Court had upheld the law in McCullough v. Maryland.  Nevertheless, Jackson vetoed the bill and declared, “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.”

In fulfilling its constitutional functions, each branch has an equal and independent duty to decide upon the constitutionality of legislation, whether in passing, enforcing, or adjudicating it. “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges,” Jackson declared. And he emphasized, “on that point the President is independent of both.” He concluded that “[t]he authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities . . . .” Jackson would only grant the courts “such influence as the force of their reasoning may deserve.”

Abraham Lincoln went even farther than Jackson. Challenging the legitimacy of the Supreme Court’s Dred Scott decision defined the young Republican Party. In his famous debates with Stephen Douglas, Lincoln rose to national prominence by arguing that Dred Scott applied only to the parties in the case. In other words, the Supreme Court’s decisions could not bind the President or Congress, who had the right to interpret the Constitution too, or, most importantly, the people. “I do not deny that such decisions may be binding in any case, upon the parties to a suit, as to the object of that suit,” Lincoln explained in his First Inaugural Address.

Decisions of the Court should receive “very high respect and consideration in all parallel cases by all other departments of government.” It might even be worth following erroneous decisions at times because the costs of reversing them might be high. But “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln argued, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Nationwide injunctions intrude into the President’s ability to enforce his understanding of the Constitution. If Lincoln’s view of the reach of the judiciary’s power is correct, the President has the right to advance his reading of the Constitution even if a court has enjoined it elsewhere. While Lincoln conceded that he would obey judicial decisions, he argued that he could continue to enforce his policies against individuals other than the parties to litigation. 

Lincoln argued that, even with Dred Scott on the books, he had no constitutional obligation to apply its rule to new cases. If the federal courts believed that the Constitution prevented northern states from freeing slaves, judges would have to hear cases and issue orders for each freed slave to be returned to his or her owner. Nationwide injunctions claim a power to allow a district court to force a President to obey a single judge’s reading of the Constitution throughout the nation, even in cases not yet brought.

Nationwide injunctions conflict with an even narrower claim of presidential power to interpret the Constitution. A President may accept the Supreme Court’s interpretation of the Constitution.  However, to reach the Court, the President will want to test his reading of the Constitution in other courts. A single judge, who happens to be the first to reach an important constitutional issue, effectively short-circuits the ability of other courts to examine the issue if he or she issues a nationwide injunction. But a President should have the right to go to federal courts in other states; should the courts disagree, the Supreme Court can ultimately intervene to resolve the conflict. Nationwide injunctions prevent Presidents from advancing their reading of the Constitution in other courts and ultimately quickly bringing their policies to the Supreme Court.

Second, if district courts have the power to issue nationwide injunctions, that power must come from the Constitution itself – specifically, from Article III, section 1, which reads in part: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  (No statute confers the general power to issue nationwide injunctions, though some have argued that the Administrative Procedure Act permits them in certain cases.) The constitutional question, therefore, is whether the grant of the “judicial power” permits or forbids the lower courts to issue nationwide injunctions. (Even if Article III would allow lower courts to exercise such remedial power, Congress can limit that exercise.)

Because the grant of the “judicial power” is on its face so open-ended, it is necessary – if only for the sake of maintaining the separation of powers – to refer to historical understandings and practices to construe its meaning. To define the contours of the “judicial power,” the Supreme Court has regularly consulted the practices of English and American courts of law and equity before the framing of the Constitution and in its early aftermath. The Court has developed its doctrines concerning Article III standing and advisory opinions from the bare reference to its power to decide only “Cases” and “Controversies” under Article III, section 2. The same historical background informs the understanding of the scope of judicial remedies permissible under Article III.

As Justice Felix Frankfurter wrote in Coleman v. Miller (1939):

[T]he framers of the Judiciary Article gave merely the outlines of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power would come into play only in matters that were the traditional concern of the courts at Westminster…. [I]t was not for courts to pass upon [legal questions] as abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament of law.

The Framers themselves clarified that the scope of the judicial power was to be understood in light of customary judicial practices. In Federalist No. 78, Alexander Hamilton wrote:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.

And in Federalist No. 83, Hamilton sought to reassure critics of the proposed grant to the federal courts of the power to grant equitable relief that although that power originated “in extraordinary cases, which are exceptions to the general rules,” “the principles by which that relief is governed are now reduced to a regular system.” In these essays, Hamilton seems to have been following the lead of the great English commentator Sir William Blackstone who, in his analysis of the courts of equity, denied that “a court of equity is not bound by rules or precedents, but acts from the opinion of the judge, founded on the circumstances of every particular case,” and maintained instead that “the system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart.”

Further, the Supreme Court has long held that a federal court’s authority to fashion injunctive relief is “an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.” Grupo Mexicano de Desarrollo, S.A. (1999). And, as Justice Thomas pointed out in Trump v. Hawaii, “[t]he English system of equity did not contemplate universal injunctions,” while “as a general rule, American courts of equity did not provide relief beyond the parties to the case.” Thus, the very fact that nationwide injunctions were little known to the lower federal courts until well into the present century undercuts the notion that they were subsumed within the “judicial power.”

Fundamentally, as legal scholar Samuel Bray has put it, American courts have adopted a “strongly party-centric understanding of the judicial power,” including the scope of the relief they have granted. “Equitable remedies,” Justice Gorsuch writes, “like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit… .[W]hen a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.”

Likewise, Justice Alito reaffirms “the principle that a federal court may not issue an equitable remedy that is ‘more burdensome to the defendant than necessary to’ redress the plaintiff’s injuries.” The remedy should be no broader than the judgment, and the judgment should be confined to the parties.

Furthermore, these general principles operate with particular force in the preliminary stage of a lawsuit, when many of the preliminary injunctions (PIs) and temporary restraining orders (TROs) to which the Trump administration objects were issued. The purpose of a PI is to maintain the status quo – and so avoid irreparable damage to the plaintiff – until the full case can be heard and decided on the merits. Nationwide PIs are not appropriate at that stage because the plaintiff is not required to prove his case in full to obtain one.

Still less are TROs appropriate, because the defendant ordinarily cannot even obtain appellate review of them. If nationwide PIs and TROs become commonplace – and that is the direction in which the lower courts are heading – the ability of the judicial system to achieve well-briefed and carefully-deliberated decisions will be badly impaired.

Heritage legal scholars Paul Larkin, Jr. and GianCarlo Canaparo have pressed this point forcefully, emphasizing that nationwide injunctions will degrade the quality of Supreme Court decision-making. They note that the Court prefers not to decide highly visible but legally complex cases on an emergency basis, but likes them to “percolate” through the lower courts before addressing them. After numerous lower courts have grappled with these issues and, perhaps, after courts of appeals have entered differing opinions, the Court is vastly better equipped to reach an informed conclusion. In the 1984 Mendoza case, the Court explained the desirability of allowing such gradual development of legal questions in the courts below.

Justice Gorsuch also drew attention to this problem in Labrador v. Poe, observing that “universal injunction practice is almost by design a fast and furious business.” In that practice, he said, “[j]ust do a little forum shopping for a willing judge and, at the outset of the case, you can win a decree barring the enforcement of a duly enacted law against anyone.” Unless the defendant government promptly appeals, “it can expect a law that the people’s elected representatives have adopted [to] remain ineffectual for years on end.” The effect of short-circuiting the normal, more deliberative processes of judicial review, he said, will tend to force judges at all levels into “rushed, high-stakes, low-information decisions.”

For constitutional and policy reasons, the Supreme Court must then bridle the use of nationwide injunctions. They undermine the political branches’ right and duty to interpret the Constitution by their own best lights. They are an unconstitutional anomaly, alien to our centuries-old judicial tradition. They bring the courts that issue them, and the judicial system, into disrepute. And they degrade the overall quality of judicial decision-making. If the purported defenders of the “rule of law” think that nationwide injunctions are serving that cause against Donald Trump, they are dead wrong.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute.

Robert Delahunty is a Washington Fellow of the Claremont Institute Center for the American Way of Life.