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The Lost History of the “Universal” Injunction

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The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by members of Congress, a Supreme Court Justice, the Solicitor General, the Attorney General, and the President. Critics of these “universal” injunctions have claimed that such injunctions are a recent invention and that they exceed the power conferred by Article III to decide “Cases[] in . . . Equity.” This Article rebuts the proposition that the universal injunction is a recent invention and that it violates Article III or the traditional limits of equity as practiced in the federal courts. As far back as 1913, the Supreme Court itself enjoined federal officers from enforcing a federal statute not just against the plaintiff, but against anyone, until the Court had decided the case. If the Supreme Court can issue a universal injunction against enforcement of a federal law, then — as an Article III matter — so can a lower federal court. Moreover, lower federal courts have been issuing injunctions that reach beyond the plaintiffs as to state laws in cases that date back more than a century, and the Supreme Court has repeatedly approved of these injunctions. If Article III allows such injunctions as to state laws, it a fortiori allows such injunctions as to federal laws. Mapping these and other pieces of the lost history of the universal injunction, this Article demonstrates that the Article III objection to the universal injunction should be retired and that the unfolding efforts to outright strip the federal courts of the tool of the universal injunction — whether by statutory fiat or by a judicial redefinition of Article III — should halt.

But I would speak to the consciences of honorable men, and ask, how they can venture . . . to recommend changes, which may cut deep into the quick of remedial justice . . . . Surely, they need not be told, how slow every good system of laws must be in consolidating; and how easily the rashness of an hour may destroy, what ages have scarcely cemented in a solid form.

  • Joseph Story, Justice of the U.S. Supreme Court (1812–1845)1×1. Joseph Story, Discourse Pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University (Aug. 25, 1829), in The Miscellaneous Writings, Literary, Critical, Juridical, and Political, of Joseph Story 440, 450 (Boston, James Munroe & Co. 1835).


The Trump Administration and the Obama Administration do not seem to have much in common. But they have had one shared foe: the “universal” injunction. Across both administrations, federal district courts have issued a slew of injunctions blocking the executive branch from enforcing federal laws, regulations, or policies “not only against the plaintiff, but also against anyone,”2×2. Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 419 (2017). even in cases not certified as class actions.

The federal courts’ power to issue such injunctions — which are variously called “national,”3×3. Id. “nationwide,”4×4. Id. at 419 n.5. “universal,”5×5. Id. and even “cosmic”6×6. Transcript of Oral Argument at 72, Trump v. Hawaii, 138 S. Ct. 2392 (2018) (No. 17-965), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-965_l5gm.pdf [https://perma.cc/KM6E-HLEJ]. — is now under fire. In Trump v. Hawaii,7×7. 138 S. Ct. 2392. Justice Thomas concurred separately to urge the Court to take up the question of the legality of such injunctions, suggesting that they are a modern innovation and that they might fall outside the judicial power of Article III courts.8×8. Id. at 2425, 2427–29 (Thomas, J., concurring) (“Even if Congress someday enacted a statute that clearly and expressly authorized universal injunctions, courts would need to consider whether that statute complies with the limits that Article III places on the authority of federal courts.” Id. at 2425 n.2.). In 2018, the House Judiciary Committee of the 115th Congress released a markup of the Injunctive Authority Clarification Act,9×9. H.R. 6730, 115th Cong. (2018). which would curtail the authority of federal courts to issue such injunctions.10×10. See id. § 2(a). If enacted, the bill would amend Title 28 of the U.S. Code to provide the following: “No court of the United States . . . shall issue an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.” Id. The same bill was reintroduced in the 116th Congress. See Injunctive Authority Clarification Act of 2019, H.R. 77, 116th Cong. (2019). In December 2018, the Solicitor General’s Office called for the Court to “arrest” this “disturbing but accelerating trend,”11×11. Application for a Stay in the Alternative to a Writ of Certiorari Before Judgment to the United States Court of Appeals for the Ninth Circuit at 21, Trump v. Karnoski, 139 S. Ct. 950 (2019) (No. 18-676) [hereinafter Karnoski Stay Application]. which it cast as a “rapidly expanding threat to the respect that each coordinate Branch of our Nation’s government owes the others.”12×12. Id. at 27. In guidelines to Department of Justice civil litigators, former Attorney General Jeff Sessions referred to such injunctions as “abuses of judicial power,” a “threat[]” to “the rule of law,” a “danger to our constitutional order,” and a “kind of judicial activism [that] did not happen a single time in our first 175 years as a nation.”13×13. Press Release, Office of Pub. Affairs, U.S. Dep’t of Justice, Attorney General Sessions Releases Memorandum on Litigation Guidelines of Nationwide Injunctions Cases (Sept. 13, 2018), https://www.justice.gov/opa/pr/attorney-general-sessions-releases-memorandum-litigation-guidelines-nationwide-injunctions [https://perma.cc/48A9-7NFA] [hereinafter Sessions Press Release]; see also Memorandum from Att’y Gen. Jeff Sessions on Litigation Guidelines for Cases Presenting the Possibility for Nationwide Injunctions to Heads of Civil Litigating Components, U.S. Att’ys (Sept. 13, 2018), https://www.justice.gov/opa/press-release/file/1093881/download [https://perma.cc/6ZE7-Q3N9] [hereinafter Sessions Memorandum]. Several states — including states that earlier sought and won such injunctions — now contend that “universal injunctions contradict the rest of Anglo-American jurisprudence.”14×14. Brief of Amici Curiae Ohio et al. in Support of Defendants-Appellants and Reversal at 29, Washington v. Azar, No. 19-35394 (9th Cir. June 7, 2019), 2019 WL 2489123, at *29 [hereinafter Brief of Amici Curiae Ohio et al.]. This brief was signed by the State of Texas, see id. at 32, which has been a plaintiff in a number of cases that resulted in universal injunctions, see, e.g., Nevada v. U.S. Dep’t of Labor, 218 F. Supp. 3d 520, 533–34 (E.D. Tex. 2016); Texas v. United States, 201 F. Supp. 3d 810, 836 (N.D. Tex. 2016); Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.) (per curiam). The Trump White House, in its characteristically measured tones, has hinted that the practice is perhaps not beyond criticism.15×15. See Press Release, White House, Statement on Sanctuary Cities Ruling (Apr. 25, 2017), https://www.whitehouse.gov/briefings-statements/statement-sanctuary-cities-ruling [https://perma.cc/9DFC-MLPU] [hereinafter Statement on Sanctuary Cities Ruling] (“Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation. . . . This case is yet one more example of egregious overreach by a single, unelected district judge. Today’s ruling undermines faith in our legal system . . . .”). A growing vein of scholarship concerning such injunctions has also developed.16×16. See, e.g., Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49 (2017); Bray, supra note 2; Zachary D. Clopton, National Injunctions and Preclusion, 118 Mich. L. Rev. 1 (2019); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065 (2018); Suzette M. Malveaux, Response, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. F. 56 (2017); Michael T. Morley, De Facto Class Actions?: Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J.L. & Pub. Pol’y 487 (2016) [hereinafter Morley, De Facto Class Actions?]; Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615 (2017) [hereinafter Morley, Nationwide Injunctions]; Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017); Alan M. Trammell, Demystifying Nationwide Injunctions, 98 Tex. L. Rev. 67 (2019); Howard M. Wasserman, “Nationwide” Injunctions Are Really “Universal” Injunctions and They Are Never Appropriate, 22 Lewis & Clark L. Rev. 335 (2018); see also Gregg Costa, An Old Solution to the Nationwide Injunction Problem, Harv. L. Rev. Blog (Jan. 25, 2018), https://blog.harvardlawreview.org/an-old-solution-to-the-nationwide-injunction-problem [https://perma.cc/5TKN-GPPD].

This Article demonstrates that the universal injunction is a tool with a more venerable lineage than heretofore recognized.17×17. The proper term for such injunctions is in flux; “[n]o term is perfect.” Bray, supra note 2, at 419 n.5. I use universal because the term “universal” foregrounds “the real point of distinction,” which is that “the injunction protects nonparties,” rather than the geographic scope of the injunction. Id.; see Trump v. Hawaii, 138 S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring) (“[Universal] injunctions are distinctive because they prohibit the Government from enforcing a policy with respect to anyone, including nonparties — not because they have wide geographic breadth.”); Frost, supra note 16, at 1071 (“[T]he dispute is about who can be included in the scope of the injunction, not where the injunction applies or is enforced.”); see also sources cited infra note 23. I take care to specify throughout when I am speaking of universal injunctions against federal laws or regulations rather than against state or local laws or regulations; similarly, I take care to distinguish when I am speaking of injunctions that bar enforcement against anyone from injunctions that do reach beyond the plaintiff but do not shield every potential enforcement target. The term “nationwide injunction” is often used to refer to an injunction against federal law that shields nonparties nationwide, even when the injunction stops short of shielding “everyone.” See, e.g., Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (per curiam) (ordering a nationwide injunction that shielded a subset of nonplaintiff foreign nationals from an executive order concerning immigration from several Muslim-majority countries), vacated as moot, 138 S. Ct. 353 (2017) (mem.) (per curiam). Professor Samuel Bray defines the term “national injunction” as an injunction issued by a federal court “in [a] non–class action[]” that “prohibit[s] the enforcement of a federal statute, regulation, or order not only against the plaintiff, but also against anyone.” Bray, supra note 2, at 419; see also id. at 438 (citing as a “national injunction” the decree in Wirtz v. Baldor Electric Co., 337 F.2d 518 (D.C. Cir. 1963), which was a suit brought by the plaintiffs “on behalf of themselves and all other United States manufacturers of electric motors and generators similarly situated,” id. at 533). Surveying cases involving both state and federal law and drawing on decisions by courts at all three levels of the federal judicial hierarchy, this Article shows that Article III courts have issued injunctions that extend beyond just the plaintiff for well over a century. Building on this lost history, this Article argues that the Article III objection to the universal injunction should be retired and that legislative efforts to outright strip the federal courts of the substantive power to grant such injunctions should halt.

Let us begin with the history. The universal injunction against federal law did not “emerg[e] for the first time in the 1960s,”18×18. Trump v. Hawaii, 138 S. Ct. at 2426 (Thomas, J., concurring) (“These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently.”); see also Sessions Memorandum, supra note 13, at 4 (“Scholars have not found a single example of any judge issuing this type of extreme remedy in the first 175 years of the Republic.”). as many critics of the universal injunction have claimed. The Court itself issued a universal injunction in 1913, in the months preceding its opinion in Lewis Publishing Co. v. Morgan,19×19. 229 U.S. 288 (1913). when it temporarily enjoined a federal statute from being enforced not just against the plaintiffs but also against “other newspaper publishers.”20×20. Journal of Commerce & Commercial Bulletin v. Burleson, 229 U.S. 600, 600 (1913) (per curiam). A copy of the original opinion has been made available here: https://perma.cc/4KDR-J4HA. In the following decade, the Court issued two other preliminary injunctions that barred a federal law’s enforcement beyond the plaintiffs within a single judicial district, and in one of those cases it specified that similarly broad final relief should issue.21×21. See infra sections III.B–C, pp. 947–54. Moreover, at least as far back as 1916, three-judge federal courts issued injunctions against the enforcement of laws that reached beyond the plaintiffs in those suits.22×22. See infra section IV.A, pp. 959–73. The laws thereby enjoined were state laws, not federal laws, but the injunctions possessed the characteristic that matters most to the Article III debate over the injunctive power23×23. See Trump v. Hawaii, 138 S. Ct. at 2425 n.1 (Thomas, J., concurring); id. at 2427 (“[A]s a general rule, American courts of equity did not provide relief beyond the parties to the case. . . . American courts’ tradition of providing equitable relief only to parties was consistent with their view of the nature of judicial power.”); see also The Role and Impact of Nationwide Injunctions by District Courts: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Internet of the H. Comm. on the Judiciary, 115th Cong. 5 (2017) (statement of Samuel L. Bray, Professor, UCLA School of Law) [hereinafter Bray Testimony] (“What makes the national injunction distinctive is not its breadth. It is not about spatial extent or being nationwide. . . . What makes this remedy novel and dangerous is that a court is controlling how the government defendant acts toward people who are not parties in the case. . . . The point . . . is that courts are giving remedies to nonparties.”). : those injunctions gave sweeping protection to nonplaintiffs who would otherwise have been vulnerable to the law’s enforcement. When the state defendants in those suits appealed directly to the Supreme Court — as procedural law at the time allowed them to do24×24. See Stratton v. St. Louis Sw. Ry. Co., 282 U.S. 10, 13–16 (1930); John E. Lockwood et al., The Use of the Federal Injunction in Constitutional Litigation, 43 Harv. L. Rev. 426, 444–46 (1930).  — the Court on several occasions affirmed the lower courts’ injunctions, and sometimes did so in single-sentence, unanimous, per curiam decisions. In one important (though not unique) instance — Pierce v. Society of Sisters25×25. 268 U.S. 510 (1925). — the Court affirmed a universal injunction barring the enforcement of Oregon’s compulsory public-schooling law in a landmark precedent that remains good law to this day.26×26. See id. at 534–36.

Not long thereafter, the universal injunction was brought to bear upon federal agency action. In 1939, the D.C. Circuit issued a universal injunction against federal agency action in Lukens Steel Co. v. Perkins.27×27. 107 F.2d 627 (D.C. Cir. 1939) (per curiam), rev’d, 310 U.S. 113 (1940). That highly consequential decree altered the federal government’s purchasing activities with respect to the iron and steel industries for a whole year in the run-up to America’s entry into World War II.28×28. Perkins, 310 U.S. at 131. When the Supreme Court took up the case in Perkins v. Lukens Steel Co.,29×29. 310 U.S. 113; see infra section V.A, pp. 983–91. the Court held that the plaintiffs lacked standing and were thus not entitled to seek any kind of relief;30×30. Perkins, 310 U.S. at 123 (“[T]he Government has challenged the right of the judiciary to take such action . . . at the instance of parties whose rights the Government has not invaded and who have no standing in court to attack the Secretary’s determination.” (emphasis added)); id. at 125 (“[N]o legal rights of respondents were shown to have been invaded or threatened in the complaint upon which the injunction of the Court of Appeals was based.”); id. at 132. the steel companies’ suit, the Court held, “contains no semblance of these elements which go to make up a litigable controversy as our law knows the concept.”31×31. Id. at 127. Crucially, Perkins left intact the propriety of injunctions reaching beyond the plaintiffs as remedies in cases brought by plaintiffs with standing;32×32. See id. at 129–30, 129 n.21 (distinguishing, inter alia, Pierce as one of the cases that “relate to problems different from those inherent in the imposition of judicial restraint upon agents engaged in the purchase of the Government’s own supplies,” id. at 129–30). indeed, Perkins is bookended by decisions in which the Court continued to approve that practice. In Hague v. CIO,33×33. 307 U.S. 496 (1939). less than a year before Perkins, the Court affirmed an injunction that protected those who acted in sympathy with the plaintiffs from enforcement of a city law;34×34. Id. at 517 (opinion of Roberts, J.) (calling the relevant provision of the decree “unassailable”); see infra pp. 987–89 (discussing Hague). in West Virginia State Board of Education v. Barnette,35×35. 319 U.S. 624 (1943). shortly after Perkins, the Court affirmed an injunction that reached beyond both the plaintiffs’ children and the alleged plaintiff class to shield “any other children having religious scruples” from a state law requiring students to salute the American flag.36×36. Transcript of Record at 46, Barnette, 319 U.S. 624 (No. 591); see Barnette, 319 U.S. at 642; infra pp. 990–91 (discussing Barnette).

This history has important implications for how we should understand Article III.37×37. The Court has long relied upon historical practice by the federal courts to lend meaning to the notoriously terse phrases of Article III. See, e.g., Tutun v. United States, 270 U.S. 568, 576 (1926); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803); see also NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (“[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.”). See generally Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1759–1802 (2015) (using cases from the federal courts canon to elaborate on the relevance of historical practice to constitutional meaning). Today, critics of the universal injunction contend that Article III courts should adhere — or, as they sometimes frame it, revert38×38. See, e.g., Letter from Samuel Bray, Professor of Law, UCLA Sch. of Law, to Advisory Committee on Rules of Civil Procedure (Mar. 1, 2017), http://www.uscourts.gov/sites/default/files/17-cv-e-suggestion_bray_0.pdf [https://perma.cc/7EAQ-FEVE] [hereinafter Bray Letter]. Bray has proposed the following amendment to Federal Rule of Civil Procedure 65(d): “Every order granting an injunction and every restraining order must accord with the historical practice in federal courts in acting only for the protection of parties to the litigation and not otherwise enjoining or restraining conduct by the persons bound with respect to nonparties.” Id. at 1; see Fed. R. Civ. P. 65(d).  — to the rule that injunctions must be solely “plaintiff-protective.”39×39. Bray, supra note 2, at 420 (“A federal court should give a plaintiff-protective injunction, enjoining the defendant’s conduct only with respect to the plaintiff.”); id. at 471 (“Article III . . . confers . . . a power to decide a case for a particular claimant. . . . The court has no constitutional basis to decide disputes and issue remedies for those who are not parties.”); id. at 473 (defending proposed rule that injunctions be only plaintiff-protective as “a close translation of traditional equity into the present, with sensitivity to institutional and ideological changes”). Bray’s article was focused on injunctions against federal law; as he noted, however, his rule would “logically apply” to injunctions against state law. Id. at 424 (“[F]ederal courts should issue injunctions that control a state defendant’s conduct vis-à-vis the plaintiff, not vis-à-vis nonparties.”). They have urged the Advisory Committee on Federal Rules to create such a rule by amending the Federal Rules of Civil Procedure.40×40. See Bray Letter, supra note 38. They have pressed Congress to institute such a rule by statute — and indeed, the 115th Congress lately considered doing just that, holding hearings on whether it should forbid what the bill at issue styled as “orders purporting to restrain enforcement against non-parties”41×41. Injunctive Authority Clarification Act of 2018, H.R. 6730, 115th Cong. § 2(a) (2018). in cases not certified as Rule 23 class actions. Justice Thomas, as noted, has suggested that Article III may forbid injunctions that reach beyond the plaintiffs.42×42. See Trump v. Hawaii, 138 S. Ct. 2392, 2426 (2018) (Thomas, J., concurring).

We must be clear about one thing: it would be a sharp departure from precedent and practice to treat Article III as requiring the equitable remedial powers of federal courts to be cabined in that manner.43×43. Throughout, this Article draws a firm line between arguments concerning Article III’s meaning, on the one hand, and policy arguments, on the other. This is not because, as a general matter, one must think of disputes over constitutional meaning as hermetically sealed off from questions of sensible policy. It is because a critically important piece of the case against the universal injunction is the claim that solely as a matter of positive law Article III does not allow such injunctions. See id. at 2429 (dismissing defenses of the universal injunction because they “do not explain how these injunctions are consistent with the historical limits on equity and judicial power” and instead “at best ‘boi[l] down to a policy judgment’ about how powers ought to be allocated among our three branches” (quoting Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1225 (2015) (Thomas, J., concurring in judgment))). This Article addresses that proposition on its own terms — as a claim concerning constitutional power that is strictly distinct from, and lexically prior to, whether such injunctions are good or bad as a policy matter. Article III confers a singular power upon all federal courts to decide “Cases[] in . . . Equity.”44×44. U.S. Const. art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity . . . .”). It does not allocate different types of equitable remedial power to courts at different levels of the federal judicial hierarchy, and it draws no line between state and federal government defendants. That singular judicial power must be uniformly interpreted, and its scope cannot sensibly be regarded as hinging on the surmounting of hurdles to class certification that were not created until 1966. If the Supreme Court can issue a universal injunction against enforcement of a federal law in a suit by a single plaintiff, then so can a federal district court as an Article III matter. If a federal district court can issue a universal injunction against enforcement of a state law in a suit by a single plaintiff, a federal district court must also have the power to issue such an injunction against enforcement of a federal law as an Article III matter. There is only one “judicial Power,”45×45. U.S. Const. art. III, §§ 1–2. and that power includes the power to issue injunctions that protect those who are not plaintiffs.

Finally, some critics of the universal injunction have invoked a strict form of originalism in support of their case against that remedy.46×46. See, e.g., Sessions Memorandum, supra note 13, at 2; see also Brief of Amici Curiae Ohio et al., supra note 14, at 27 (“[B]ecause this form of equitable relief was unavailable in the English Court of Chancery [of] the 18th century, it is similarly unavailable in federal courts today.”). But the logic of that argument would extend well beyond the universal injunction. At the time of the Founding, English officers were kept to heel not with injunctions issued by the Chancellor in equity, but instead with common law damages suits or “prerogative” writs (mandamus, quo warranto, and so on) issued by the King’s Bench — a common law court.47×47. See Richard H. Fallon, Jr., et al., Hart & Wechsler’s The Federal Courts and the Federal System 939–40 (5th ed. 2003); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 2–18 (1963); George Jarvis Thompson, The Development of the Anglo-American Judicial System, 17 Cornell L.Q. 9, 40–41 (1932). And American federal courts did not issue “Young-type”48×48. See Ex parte Young, 209 U.S. 123 (1908). injunctions against enforcement suits brought by state and federal officers until well after the Founding.49×49. See id. at 149–56 (upholding a federal court injunction barring a state attorney general from suing to enforce an unconstitutional state statute); see also Fallon et al., supra note 47, at 958–59 (noting that in Young “the threatened conduct of the defendant would not have been an actionable wrong at common law,” id. at 958–59, and that the “principle [in Young] has been easily absorbed in suits challenging federal official action,” id. at 959); infra pp. 997–99. A strictly originalist approach to the judicial power in equity would therefore jettison not just the universal injunction — it would equally undercut the propriety of an injunction that protected just a single plaintiff from enforcement of even an egregiously unconstitutional law by a government officer. Such a straitened conception of the equitable power of Article III courts cannot be squared with either a century-plus of practice or with “the implicit policies embodied in Article III” itself.50×50. John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 56 n.228 (2001) (quoting Flast v. Cohen, 392 U.S. 83, 96 (1968)). Nor, fortunately, is that result demanded by Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc.,51×51. 527 U.S. 308 (1999). for that decision rested not only on the meaning of equity in England in 1789, but also on how American federal courts treated that concept in decisions extending through the twentieth century.52×52. See id. at 318–19, 322–33; see also infra note 554. Measured by that yardstick, the universal injunction against federal law is constitutionally legitimate.

At bottom, the current debate over the universal injunction is as much a debate over the proper role of the federal courts as it is a debate over the arcana of equitable remedies. May courts decide disputes only for the parties before them, or may they declare the law for nonparties, too?53×53. See Frost, supra note 16, at 1086–87 (“Are courts primarily intended to resolve disputes between the parties, or do they also declare the meaning of federal law for everyone?”); Trammell, supra note 16, at 89–90. This Article’s contribution to that evergreen debate is to show how, in the period from 1890 to 1943, the law-declaration model animated and guided the actions of federal courts as they issued decrees on myriad questions of public law.54×54. The law-declaration model is one of “two basic adjudicatory models” used to describe the exercise of judicial review. Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 668 (2012). The dispute-resolution model “focuses upon the actual dispute between the litigants,” while the law-declaration model “focus[es] . . . on the courts, not the litigants,” and places “its emphasis on the judicial role in saying what the law is.” Id. Expanding the frame of our inquiry even by this much reveals that the injunction reaching beyond the plaintiffs — and the law-declaration model of the judicial power that this remedy implies — is not some late-blooming efflorescence of post–Warren Court judicial hubris. Rather, it is a tool that developed in tandem with, and in support of, the regime of routinized judicial review of state and federal official action that we continue to live under today. Our government is not a monarchy, and our federal judges are not Westminster chancellors;55×55. Manning, supra note 50, at 56 n.228 (“[T]he practices prevailing at Westminster in 1789 frequently inform the meaning of Article III power. . . . Still, in many important areas, the Supreme Court has found the English model of judicial power inappropriate to the American constitutional scheme. For example, Blackstone had explained that English judges lacked the power of judicial review. . . . But in an American government established by ‘a written constitution,’ the Supreme Court of course found such authority to be implicit in the judicial power to ‘say what the law is.’” (citations omitted)). in no small part, the one has followed from the other.

The Article proceeds in six Parts. Part I maps how the current discourse concerning universal injunctions has gerrymandered the analysis of judicial power and has thereby cast undue doubt on the propriety of this remedy. Part II explores how the Supreme Court in the 1890s endorsed an expansive view of the powers of federal courts to control the rights of nonparties through injunctive decrees. Part III describes injunctions against enforcement of federal statutes issued by the Court itself in the 1910s and 1920s and examines their implications for the Article III analysis. Part IV describes injunctions against enforcement of state law issued by lower federal courts from the 1910s through the 1930s and then similarly outlines their implications for the Article III analysis. Part V turns to federal agency action, focusing specifically on Perkins and two cases involving state and local laws that are important for understanding Perkins; this Part spans the 1939–1943 period. Part VI explains why the unfolding efforts to outright strip the federal courts of the tool of the universal injunction — whether by statutory fiat or by a judicial redefinition of Article III — should halt. A brief conclusion follows.



* Professor of Law, University of San Diego School of Law; Visiting Professor of Law, Harvard Law School (Fall 2018). For helpful comments and conversations, I am grateful to Nick Bagley, Will Baude, Sam Bray, Laurie Claus, Chris Egleson, Richard Fallon, Brian Fitzpatrick, Amanda Frost, Kellen Funk, Tara Leigh Grove, Amalia Kessler, Ron Levin, Daryl Levinson, John Leubsdorf, Suzette Malveaux, John Manning, David Marcus, Henry Monaghan, Caleb Nelson, Nick Parrillo, Jim Pfander, Zachary Price, Richard Re, Daphna Renan, Doug Rendleman, Bill Rubenstein, David L. Shapiro, Henry Smith, Michael Solimine, Alan Trammell, Ann Wool-handler, Adam Zimmerman, and to faculty workshop participants at the University of San Diego (USD) Law School and Vanderbilt Law School. This paper benefitted from feedback received at the Rothgerber Conference at the University of Colorado (Boulder) Law School and the Fifth Annual Civil Procedure Workshop at the University of Texas Law School. I am indebted to Dennis Grady, Paul Caintic, and the law librarians at USD and Harvard Law School for their help in researching this article, and to the talented editors of the Harvard Law Review for their comments and suggestions. This Article is dedicated to the memory of my teacher, mentor, and treasured friend, Professor David L. Shapiro.