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
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 even in cases not certified as class actions.
The federal courts’ power to issue such injunctions — which are variously called “national,”3 “nationwide,”4 “universal,”5 and even “cosmic”6 — is now under fire. In Trump v. Hawaii,7 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 In 2018, the House Judiciary Committee of the 115th Congress released a markup of the Injunctive Authority Clarification Act,9 which would curtail the authority of federal courts to issue such injunctions.10 In December 2018, the Solicitor General’s Office called for the Court to “arrest” this “disturbing but accelerating trend,”11 which it cast as a “rapidly expanding threat to the respect that each coordinate Branch of our Nation’s government owes the others.”12 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 Several states — including states that earlier sought and won such injunctions — now contend that “universal injunctions contradict the rest of Anglo-American jurisprudence.”14 The Trump White House, in its characteristically measured tones, has hinted that the practice is perhaps not beyond criticism.15 A growing vein of scholarship concerning such injunctions has also developed.16
This Article demonstrates that the universal injunction is a tool with a more venerable lineage than heretofore recognized.17 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 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 when it temporarily enjoined a federal statute from being enforced not just against the plaintiffs but also against “other newspaper publishers.”20 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 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 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: 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 — 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 — 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
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 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 When the Supreme Court took up the case in Perkins v. Lukens Steel Co.,29 the Court held that the plaintiffs lacked standing and were thus not entitled to seek any kind of relief;30 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 Crucially, Perkins left intact the propriety of injunctions reaching beyond the plaintiffs as remedies in cases brought by plaintiffs with standing;32 indeed, Perkins is bookended by decisions in which the Court continued to approve that practice. In Hague v. CIO,33 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 in West Virginia State Board of Education v. Barnette,35 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
This history has important implications for how we should understand Article III.37 Today, critics of the universal injunction contend that Article III courts should adhere — or, as they sometimes frame it, revert38 — to the rule that injunctions must be solely “plaintiff-protective.”39 They have urged the Advisory Committee on Federal Rules to create such a rule by amending the Federal Rules of Civil Procedure.40 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 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
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 Article III confers a singular power upon all federal courts to decide “Cases in . . . Equity.”44 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 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 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 And American federal courts did not issue “Young-type”48 injunctions against enforcement suits brought by state and federal officers until well after the Founding.49 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 Nor, fortunately, is that result demanded by Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc.,51 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 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 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 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 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.