Supreme Court Nixes Nationwide Injunctions

The Supreme Court held today that the statute that grants federal courts authority in “suits in equity” does not empower a court to issue an injunction against enforcement of a statute or executive order that applies nationwide, as opposed to one that only protects the plaintiffs in the case.

The high court based its opinion on the statute only, not Article III of the Constitution as the government had requested. That means that Congress can still enact a new statute spelling out when, if ever, nationwide injunctions can be ordered. Bills are pending in Congress, as I noted in this post. Congress should proceed with that effort. Sometimes such injunctions are needed, but swift review must be provided so that a single judge does not halt enforcement on a dubious theory, especially where the same theory has been rejected by other district judges.

The decision was 6-3, on predictable lines. The opinion of the court was written by Justice Barrett. Justice Alito wrote a concurring opinion noting two important unresolved issues: states bringing suits and class actions. If a state can bring a suit as protector of its citizens, the resulting injunction would have statewide, though not nationwide, effect. Also, if very broad classes can be certified, an injunction might be effectively nationwide. Congress should address these issues also.

Justice Kavanaugh’s concurring opinion discusses the related issue of the Supreme Court deciding the propriety of an injunction during the many years that it takes for a final decision. He says that the court should generally do so regarding “a major new federal statute, rule, or executive order.” Of course, what is “major” is debatable in many cases.

Justice Sotomayor’s dissent begins by blasting President Trump’s executive order on birthright citizenship, the subject of the suit, and doesn’t get to nationwide injunctions until halfway down the second page. She makes a valid point that the procedural question in this case has no political polarity, a point I noted in my previous post. “No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.” Quite true. If the 2024 presidential election had gone the other way, it would likely be Republicans seeking nationwide injunctions against executive actions that they deem patently unconstitutional.

At the risk of sounding repetitive,* that is why Congress should continue moving forward with a permanent, balanced solution.

CJLF has not taken a position on the order declaring that children born in the United States to parents who have immigrated here illegally are not citizens. That issue is not within our mission. Personally, I expect that the order will be declared illegal in the end.

* I initially wrote “sounding like a broken record.” But a large part of the population today has never heard a scratched phonograph record repeat itself.