Academic journal article Vanderbilt Law Review

Can and Should Universal Injunctions Be Saved?

Academic journal article Vanderbilt Law Review

Can and Should Universal Injunctions Be Saved?

Article excerpt


In April 2017, then-Attorney General Jeff Sessions expressed his amazement2 that "a judge sitting on an island in the Pacific" could stop President Donald Trump from fulfilling a key campaign promise: enacting a so-called Muslim Ban.3 Sessions was adding to the growing skepticism that a federal district court judge-sometimes handpicked based on his perceived outlier views4-could grant a "universal injunction"5 to immediately halt the enforcement of an executive action6 against not only the parties before the court but also against anyone, anywhere.7 When the final version of the Muslim Ban reached the Supreme Court in Trump v. Hawaii, Justice Clarence Thomas wrote separately to urge the Court to address the propriety of universal injunctions which he deemed "legally and historically dubious."8 Justice Neil Gorsuch also signaled his disapproval of these extraordinary remedies by sardonically referring to them as "cosmic injunctions" during oral argument.9 Chief Justice John Roberts previously voiced similar concerns.10

Even though the Supreme Court has yet to squarely address the propriety of universal injunctions,11 some lower courts have interpreted Trump v. International Refugee Assistance Project ("IRAP")12 as an endorsement of the remedy, citing the decision to justify their own universal injunctions.13 The Court in IRAP first recognized that "[c]rafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents."14 The Court then only slightly narrowed the district court's universal injunction against the Muslim Ban by leaving it in place for "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States."15 Nevertheless, the endorsement was tepid at best, and the Court's rebuke of universal injunctions could be impending.16

The growing scholarly consensus is that there should be a brightline rule against universal injunctions because historical limits on judicial power and the constitutional and structural constraints on federal courts prohibit equitable remedies from intentionally17 benefiting nonparties.18 The Department of Justice has advised federal prosecutors to oppose universal injunctions in every case.19 Furthermore, a member of Congress has introduced legislation that would create a brightline rule against the remedy.20 Some commentators and judges readily point to a different procedural mechanism when decrying universal injunctions: the Rule 23(b)(2) injunctive class action.21 They assert that if an individual plaintiff can secure broad injunctive relief that intentionally benefits nonparties, the 23(b)(2) class action is arguably superfluous.22

The rapid rise of universal injunctions has occurred simultaneously with the rise of sweeping public policy initiatives enacted through executive action.23 Universal injunctions halted a few of President Bush's executive actions and many of President Obama's.24 President Trump's policy agenda faced twenty-five universal injunctions in his first two years in office.25 But robust judicial review of the democratic branches of government that can secure systemwide relief is increasingly important in the face of growing, unchecked executive power26 and the erosion of the political process.27 If the universal injunction's demise is impending and the class action's demise continues unabated, obtaining systemwide relief may be difficult when such relief may be most needed.28

This Note proceeds in four parts. Part I summarizes the doctrinal basics of injunctive relief and class certification, then explains how courts have interpreted and applied these doctrines in ways that have caused the rapid rise of universal injunctions and the slow demise of class actions. Part II considers the tradeoffs litigants currently face when choosing whether to file a universal injunction suit or a class action suit by examining two challenges to President Trump's executive actions on asylum policy. …

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