Nationwide injunctions have stymied President Donald Trump’s efforts to freeze spending on climate initiatives and lay off workers in energy and environmental agencies.
But soon the fate of the sweeping judicial decrees issued by circuit courts could be shaped by the Supreme Court, which, at the behest of the White House, is considering ways it could revamp judges’ ability to issue orders that take effect across the country.
The Trump administration and its allies charge that leftist activists are teaming up with like-minded judges to throw hurdles at the administration as it attempts to shake up the system. Democrats say the flurry of court orders are a result of a turbocharged administration that is violating the rules.
The broad debate hit the high court this spring during a contentious fight over citizenship.
The Trump administration is asking the Supreme Court to address the constitutionality of universal injunctions as part of its request to reverse lower bench rulings that have blocked a Jan. 20 executive order from the White House. That order would strip birthright citizenship from babies born to parents in the country illegally or temporarily.
A decision in the case, Trump v. CASA Inc., could come as soon as this month. One court observer said it’s not clear from oral arguments where the justices might land.
“I think many of the justices were inclined to limit universal injunctions, but I also think that many of the justices were reaching for a tool that would permit federal courts to constrain government action beyond the parties, which is exactly what universal injunctions do,” said Zachary Clopton, a law professor at the Northwestern Pritzker School of Law, in an email.
Several members of the court appeared skeptical of the solution proposed by Solicitor General D. John Sauer during May 15 oral arguments. His fix would require challengers seeking nationwide orders to instead pursue class-action suits.
Sauer warned that the proliferation of universal injunctions “prevent the percolation of novel and difficult legal questions” and lead to “rushed, high-stakes, low-information decisions.”
Courts are supposed to grant relief to the people who file suit, Sauer said. Not broad swaths of the country.
“So the notion that relief has to be given to the whole world because others who have not taken the time to sue are not before the courts — is something that results in all of these problems,” he said.
Sauer suggested that filing class actions still could allow for the type of emergency relief provided by universal injunctions in certain circumstances.
However, some legal experts were skeptical the Trump administration’s favored approach would work in practice.
“There are lots of obstacles that can be put in the way of getting a case approved by a court as a class action. And the solicitor general, when pressed, was very much aware of those [obstacles],” said Suzette Malveaux, a law professor at Washington and Lee University, who wrote a “friend of the court” brief in defense of universal injunctions.
Opponents of universal injunctions also say the process encourages parties to seek out the courts or sometimes even the judges they believe will be most likely to rule in their favor.
But switching to class-action suits does not eliminate that phenomenon, according to Clopton.
“Forum shopping and judge shopping are real concerns, but they are separate from the universal injunction question and they require different responses,” Clopton wrote.
Federal judges in Rhode Island and the District of Columbia have thwarted efforts by the administration to roll back billions of dollars Congress had appropriated for green energy and climate projects under the Inflation Reduction Act and the bipartisan infrastructure law.
Judge Mary McElroy of the U.S. District Court of the District of Rhode Island in April ruled that the administration could not withhold money Congress approved for projects to tackle climate change and promote green energy.
The administration and recipients of $20 billion in Biden-era climate grants have been fighting over the disposition of the money in court for nearly three months.
Judge Tanya Chutkan of the U.S. District Court for the District in Columbia in April ordered EPA to pay out grants awarded under the Greenhouse Gas Reduction Fund. A federal appeals court issued a stay on her decision and the case is still pending.
Congress offers its own solutions
Trump’s supporters in Congress also are taking on universal injunctions.
Republican senators sparred with their Democratic counterparts last week at a judiciary subcommittee hearing that Sen. Ted Cruz (R-Texas) said was designed to spotlight the “judicial tyranny of single judges deciding they know better when it comes to policy than do the voters of America.”
Cruz singled out several decisions, at one point highlighting the Rhode Island ruling by McElroy, a Trump appointee. He said that forced the Department of Energy “to release $50 million by judicial fiat.”
McElroy ruled that EPA and DOE did not have the authority to block grants that were awarded by Congress in 2021 and 2022.
Cruz, who chairs the federal courts subcommittee, accused judges of issuing “sweeping edicts that impose their policy preferences” and argued that in four months, there have been more than 40 nationwide injunctions imposed against Trump, more than the combined 32 injunctions imposed against the George W Bush, Obama and Biden administrations.
Democrats countered that it’s because many Trump executive orders violate the law.
“Hearings like this prop up a narrative that bad courts are stopping Dear Leader Donald Trump because some cabal of Democratic judges is out to get him,” said Sen. Sheldon Whitehouse (D-R.I.). “Wrong. The reality is much simpler: He’s breaking the law. And doing it a lot. And judges are doing their job.”
Sen. Eric Schmitt (R-Mo.) endorsed the solicitor general’s proposal about class-action lawsuits and said he’s “hopeful the Supreme Court will curb injunctions to restore proper judicial limits.”
Schmitt suggested that with Chief Justice John Roberts “keen to understand the perception of the court,” the case would seem to be a “good opportunity for the court to finally weigh in.”
The concerns from Trump’s solicitor general about universal injunctions were echoed by José Alicea, director of the Columbus School of Law’s Center for the Constitution and the Catholic Intellectual Tradition. He said district court judges had no constitutional or statutory power to issue such sweeping orders.
“The effect of a universal injunction is that the policies of the elected President (and, in some instances, of the elected Congress as well) are subject to what is effectively a veto by unelected district court judges,” he wrote in prepared remarks before the committee.
“Because it only takes a single judge to issue a universal injunction,” he continued, “the President’s opponents only have to win one lawsuit to stop the President, whereas the President has to win every single lawsuit if he wants to implement his challenged policies.”
The Republican-led House passed a bill in April that would limit the power of lower court judges to issue orders with national implications.
The “No Rogue Rulings Act” sponsored by Rep. Darrell Issa (R-Calif.), would constrain district courts’ authority by allowing relief to be issued only to the parties involved. Nationwide injunctions would be allowed in some instances, such as litigation brought by multiple states, if heard by a panel of three trial court judges.
The bill is unlikely to clear the Senate, however, because it would need Democratic votes to pass.
Still, Senate Judiciary Chair Chuck Grassley (R-Iowa) and Sen. Josh Hawley (R-Mo.) each have bills that would narrow injunctions so that they apply only to parties in the cases.
Grassley called universal injunctions unconstitutional and charged that they’ve become “a favorite tool for those seeking to obstruct President Trump’s agenda.” His bill would bar judges from providing non-party relief and make temporary restraining orders immediately appealable.
Hawley’s bill would ban nationwide injunctions and make clear that a district judge’s order only applies to the parties in the case — or within the local judicial district.
If the Supreme Court finds that universal injunctions exceed the power of the federal courts, that means the court can no longer issue those types of orders — even if Congress authorizes it, said Clopton, of Northwestern University.
“We should be thinking about prudential limiting principles for universal injunctions that do not prohibit them in all cases,” Clopton wrote.
This article also appears in Climatewire.
