Nationwide Injunctions After CASA

0:00This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Diego Zambrano. Please subscribe or follow this feed on your favorite podcast app. Welcome to a live recording of the show.

0:18So presidents from both parties wield their power through the pen, with executive orders often driving massive shifts in policy. Since taking office, President Trump has issued over 200 executive orders on a wide range of issues. One particularly controversial order issued on day one of the new administration attempts to significantly narrow the meaning of birthright citizenship. After multiple lower courts immediately blocked the birthright citizenship order from being implemented, the Trump administration swiftly appealed to the Supreme Court. And in Trump versus Casa, the court left the issue of birthright citizenship for another day.

0:57Instead, the Supreme Court weighed in on a critical legal question. Can federal courts issue a universal injunction that constrains the government from acting against individuals or entities beyond those who brought the lawsuit? Ultimately, in a 6-3 decision, the court ran in the power of lower courts to issue universal injunctions, but did not completely abolish it. This ruling is now having a complex and potentially large impact on the ongoing wave of legal challenges to Trump administration policies. To help us better understand CASA, we welcome our guest for this special live recording, Stanford Law Professor Mila Sahony, an expert in civil procedure, administrative law, federal courts, and legislation.

1:43Her work has been cited by the Supreme Court and in many different separate opinions penned by Justice Sonia Sotomayor, Justice Brett Kavanaugh, and Justice Ketanji Brown-Jackson. And she has written extensively about the CASA case and its broader implications.

2:02Welcome, everyone. Okay, so Mila, I want to start by just asking you, what's so controversial about nationwide injunctions? And is it something that has changed recently? Do you think there's much to do about nothing here? So tell us about that. Yeah, sure. So universal injunctions have become controversial mainly because they let a single federal district judge anywhere in the country completely stop a president's policy for everyone. not just for the people who sued. So this creates an extraordinary dynamic. So imagine a district court judge in Amarillo, Texas, blocking a nationwide vaccine mandate policy, or imagine a judge in San Francisco halting a Trump immigration order across all 50 states and for everyone.

2:48What critics say is that this turns federal district court judges into effective super legislators who can veto executive branch action based on their own political views, especially because lawyers can shop around for friendly judges and friendly districts. The controversy about these orders has 100 % intensified in recent years, but the remedy itself isn't new. So in my scholarship, I've documented federal courts issuing broad injunctions that resemble these in principle since at least 1913. What has changed is the sheer volume of them. As presidential administrations faced with gridlocked Congresses have been implementing more and more policy measures through executive branch fiat, nationwide injunctions have increased in number, and they have increased in consequence, and they therefore have increased in controversy.

3:41So during the Obama and the Biden years, Republican attorney generals figured out that they could file in friendly Texas courts and shut down those president's policies nationwide. And then during Trump's first term and to date, Democratic attorney generals perfected the same strategy in California and in district courts in the First Circuit nowadays. So we went from perhaps a small number per year to dozens of such injunctions over the course of a single presidential term. I do not think this is much ado about nothing. When any federal judge can block an executive action as to everyone, it shifts power to the judiciary.

4:22That has to be acknowledged. Is that a feature or a bug? The birthright citizenship case that you mentioned perfectly illustrates the stakes. Without universal injunctions, hundreds of thousands of newborns were at risk of losing citizenship while their parents tried to find lawyers and file individual lawsuits. With universal injunctions, several district court judges were able to stop the president from implementing what he regarded as a valid policy. So this is a fundamental question about who is running the country and how quickly and effectively courts can check executive power. Yeah, I'm glad you mentioned that a lot of this may be just a reaction to executive power, right?

5:04So lots of critics say, how can courts arrogate this kind of power, really stop these presidential policies? But there's a counter argument that, look, they're reacting to the executive, increasingly governing through these kinds of broad executive orders or agency programs. And so just to continue to, before we get into the case, talk about larger questions, what do you think are the best arguments for nationwide injunctions, or at least for the courts having the power to issue nationwide injunctions? Yeah, so the best case for these injunctions rests on three practical imperatives. First of all, district courts have to be able to respond to emergency situations when administrations suddenly impose policies that drastically affect millions of people's rights.

5:53The Supreme Court cannot handle every crisis immediately. So when an executive branch starts deporting people to a prison in El Salvador without due process, or when it begins requiring that employees be vaccinated against COVID, lower courts have to be the frontline responders to those measures. The second reason is that many victims of illegal government action cannot realistically sue to protect themselves. Many people have no meaningful opportunity to join in a lawsuit for themselves, either because they're afraid of reprisal or because they simply lack access to justice. So an undocumented immigrant who's facing deportation is going to be very worried about suing the Trump administration or the Biden administration in their own name.

6:40Poor families who are losing food stamps cannot just call up the attorney that they have on retainer and ask them to sue. Workers may fear employer retaliation if they sue. So universal injunctions protect vulnerable populations who lack a meaningful way to access justice, which is a core value of our legal system. And third, courts need to have the remedial arsenal to address government power. That remedial arsenal has to be commensurate with the way that government actually works. Once somebody is deported or once a census is conducted with an illegal question or once millions of loans are forgiven, courts cannot easily undo those kinds of actions down the road.

7:25In other cases, the only workable remedy is going to be a universal remedy. So having an EPA emissions standard that applies to some factories and not their identical competitors doesn't really make sense. And a ruling that protected only, say, the plaintiff state of New Jersey from some federal regulation or some restriction doesn't really make sense either because people can just move to the state of New Jersey. Yeah, so maybe a couple of the arguments there. One is rights protection. The other one is checking executive power. To me, the most intuitive one is that what you have here is a plaintiff is suing the government, and the court is saying, you know, the government probably violated the law here.

8:10The government doesn't have the power to do this. And so what should the court say at that point? And it seems natural to say that the court can order the government to stop the illegal action. Just stop. And that has an effect on everyone. It actually seems artificial for the court to say, no, stop, but only ask to the party that filed the lawsuit. Continue violating the other 330 million people's legal right. Yeah, this is what the scholar Douglas Lacock called the simplest use of the injunction. Halt this illegal act. And that's just one very simple way to understand what a universal or a nationwide injunction is.

8:52The court has jurisdiction over the government defendant. It has subject matter jurisdiction over the case. And it's just issuing an order that says, stop breaking the law. OK, good. But now I want to kind of push on the counter arguments. There's long been this dispute about whether courts are supposed to say what the law is or whether they're just supposed to resolve the dispute in front of them. And many critics, scholars, lawyers, judges have long affirmed that the court's only role is to resolve the dispute in front of them. So it is not actually to do anything with regards to anyone else.

9:29And if you follow that thread, the court order should say, stop implementing this program or engaging in this act with regards to the plaintiff only. That's all that the court is supposed to do. And there are many critics who point out that if you have a combination of forum shopping, where litigants are picking the courts and judges that are most likely to be friendly to them, and increasing polarization where you can find the judge that is very political and likely to be friendly to your particular case, then it's easy to cherry pick and find the judge that will quickly stop a presidential program.

10:09So you can't have high polarization, forum shopping, and nationwide injunctions because they will lead to a recipe for inaction. Government won't be able to do anything. That's one argument. Another is that we have lots of other tools in the system, including class actions, and we're going to talk about that later, that are meant to do this kind of thing, to allow a big, large group of people to file a case. And this national injunction is an end run around those other tools. There's also maybe what we should call an epistemic argument that the best way for the judiciary to operate is to slow down, let issues percolate, let multiple courts deal with an issue, and then let appeals rise up and eventually you get a Supreme Court decision or a circuit court decision on an issue.

10:59And that when you have this nationwide injunction, you're short-circuiting all of that. kind of destroying the way that the judiciary operates. And so, I mean, maybe just finally, it's implicit in the other arguments. This is anti-democratic, right? The president has been elected. The president is announcing a new program or the implementation of a statute and a single court judge is stopping that action nationwide. So those are the arguments against it. I don't know if you have any reactions to that. Yeah, so I do want to acknowledge that these are serious costs, right? these injunctions do let litigants avoid the rigors of class action certification.

11:40They do depress, to a certain extent, dialogue. They do result in decisions issuing on sort of thinner records than we would have after a full trial. But the thing is, is that if they were ditched entirely, that would have really severe costs too. And I just want to just start with the last point you mentioned, just the democracy point. I mean, if a president is juicing regulatory authority out of a statute that doesn't exist, or juicing legal authority out of a statute that is in violation of the Constitution, what the court is doing is reimposing democratic checks on the president by blocking that action from going into effect.

12:23That is what democracy is, is reinforcing what the meaning of the Constitution is, applying statutory constraints. That is the democratic argument there, that these injunctions are actually democracy furthering. If you didn't have them, you would have much more of a regulatory patchwork problem. You would have disuniformity across jurisdictions. And you would still have forum shopping because individual plaintiffs and individual states would be incentivized to choose particular favorable forums as well. On top of that, you would have many, many, many lawsuits or many more lawsuits than you have currently.

13:07So instead of just having one or two or three rushed and duplicative lawsuits, you might get dozens. And then fundamentally behind it all, who's going to make people whole if ultimately the action is held unlawful? It's very hard to unspill the milk in many of these cases. Okay, so you're pointing out there are democratic arguments on both sides. And I think that's right. I might say just a rule of law point that this is actually constraining the executive power if they're engaged in an illegal act. And so you need the judiciary to have a tool like this. But now I want to move on to the actual Supreme Court case that brought this issue to the table this year.

13:48So that's Trump v. Kaza. As I mentioned, this had to do with a birthright citizenship order. The Trump administration issued this order purporting to limit birthright citizenship. And then this decision that came out in June didn't focus on the issue of birthright citizenship. Instead, it focused on this apparently unrelated issue of a nationwide injunction. Maybe just start there. How did that happen? How is it that the court was supposed to address whether the birthright citizenship order was lawful, and then it ended up addressing the question of a nationwide injunction? Yeah, so this was a day one executive order on the first day of Trump's second term.

14:27And this executive order purported to end birthright citizenship for children whose parents lack either citizenship or green card holder status. Now, this order was pretty much immediately enjoined by three different district court judges. And I'll just note that those judges were not all nominated by Democratic presidents. The Trump administration then filed these emergency applications with the Supreme Court on what you might have heard about on the shadow docket. And the Supreme Court then issued an order saying, we want to hear oral argument. We want more briefing on this. And then it addressed the question, the only question that the government raised in its day application.

15:08And that was the question of whether the injunction should be narrowed so that they would protect only the plaintiffs rather than all those affected by this executive order. So the court was not asked to, and it ultimately did not say a word about the illegality or legality of the executive order itself. Instead, when it issued its decision in June, it only addressed the issue of the scope of the injunctions, and it stayed them to the extent that they provided relief beyond the plaintiffs in the case. Okay, so we're going to talk about the emergency docket in a second. But just to try to understand what the court said in this case.

15:52And keep in mind, the court's decision is not about whether it's a good idea or not to have a nationwide injunction. It explicitly, the majority says, is not about that. It's about whether the judiciary has the power to do this, whether it is lawful to do this. And so maybe tell us about the court's holding based on that. Yeah. So the court announced in this case in Casa, Trump versus Casa, that federal courts generally lack the authority under the Judiciary Act of 1789 to issue injunctions that protect non-parties. But they left a significant qualification to that. Courts can still issue broad relief when it's necessary to provide complete relief to the actual plaintiffs.

16:37And then the courts sent the cases back down to the lower courts to figure out whether the states and the organizations might still need universal relief for their own injuries. So, for instance, it's possible that the states wouldn't be able to get complete relief without a universal injunction because of the possibility of interstate movement of people. That would create administrative chaos. And so if that were the case, if the lower courts found that, then the states might still be entitled to as sweeping an injunction as had previously been issued. And as Diego mentioned, the court totally set aside as irrelevant.

17:14It just said we refuse to consider the policy arguments in either direction. It just treated the policy arguments as beside the point. Yeah. So a lot of, you mentioned this, a lot of the court's decision is about the history. Yeah. And that's because this power to issue an injunction like this has to be grounded in the 1789 Judiciary Act, right? And so then the question is, how do we interpret that particular statute? So the court has done this in many cases. look into the history and tradition. But here, it makes sense to look at the history, given that this is where the power to issue the injunction comes from, right?

17:52And so how do you think the court approached this question of history? And I think you're a critic of it, so maybe give us your criticism. So I do have a dog in this fight. I have written about this history a lot. So Casa looks back at the history of this statute, the Judiciary Act of 1789. In my view, it performed a very, very selective and truncated historical analysis. So it claimed to be interpreting the Judiciary Act through a historical lens, but its historical analysis was actually surprisingly very, very thin. The majority barely examined American equity practice at the founding. There's essentially no citation to any founding era American law.

18:36and the treatise that it cites doesn't even speak to this question. Instead, what the court does is it sort of looks at history after the founding and picks out particular sources from that history. So the court cites cases from the 1890s. It cites one as late as 1927 to argue against universal injunctions, but it conspicuously ignores other cases from the 20th century where the Supreme Court itself issued or affirmed exactly these kinds of broad injunctions. So in my scholarship, I've shown how federal courts issued injunctions that protected non-plaintiffs from at least 1913 onwards, including the Supreme Court blocking a new federal statute that affected newspapers for everyone, not just against the plaintiffs.

19:28Other famous examples that you might remember from law school include Pierce v. Society of Sisters or Barnett versus West Virginia. But the court just simply didn't engage with that history, sort of treating it as being beyond the window of relevant time. There are other criticisms I have of the court's use of history, but they get a little more into the weeds. Good. And a lot of it is about disputes about the history, right? Ultimately, both sides disagree about what kinds of remedies were available in the founding era. And that's because in a previous case called Grupo Mexicano, the Supreme Court has said the federal courts only have the kinds of equity remedies that they had in the founding era.

20:12Or at least you need an antecedent. You need an analogous remedy that was available in 1789. So then a lot of the debate is, well, what kinds of remedies were available in 1789 or not? And the court reads the history a certain way. Mila and others read it a different way. And so there's a heated disagreement about how to read that history. And then we move on to other reasons. The court purported to also reject any policy reasons for the way it decided this. But do you think it resolved any policy problems by ruling that, no, actually, courts don't have this power? You know, not really. Not really.

20:50because what the court did is not eliminate policy problems just so much as reshuffle them into different containers. So take forum shopping, right? Throughout this discussion, we've talked about how that is the main policy problem with people seeking and obtaining these injunctions. And recall that CASA said that you can still issue a broad injunction if that broad injunction is necessary to provide complete relief to the plaintiffs. CASA also said that it wasn't touching the power of federal courts to issue what is called universal vacator, which is the setting aside or halting of a federal rule based on a statute called the Administrative Procedure Act.

21:31CASA also did not question the court's power to certify nationwide class actions, which produce decrees that are essentially identical in their consequences to the universal injunction. So think of what your incentives would be if you were a litigator. After CASA, if you're a plaintiff, you're still going to forum shop. You're just going to be forum shopping for one of these other leftover remedies. You're going to be seeking a judge who will find that complete relief requires universal scope. You're going to be searching for a judge who's going to quickly certify a nationwide class. You're going to be searching for a judge who's going to interpret the APA to allow for universal vacator.

22:12So you're just doing the same thing under different labels or through different pathways. And we could kind of walk through all of the other policy problems that people have asserted to exist with universal injunctions, conflicting injunctions, speedy litigation, lack of percolation, et cetera. All of those things can just be recreated now that CASA has been decided. On top of that, I actually think that CASA creates some new problems. courts are now charged with engaging in this inquiry as to what makes relief complete. Courts now have to grapple with what sort of remedies are indivisible in the locution that's used in these debates.

22:58And they don't have very clear guidance on that. The Casa Court itself did not really describe very lucidly what makes relief complete or what makes less than universal relief infeasible, which is another important inquiry. So that also is going to cause some issues going down the line. So it seems like you're kind of saying the court is going to have less of an effect than you think, because we still have a lot of alternatives, a lot of ways in which plaintiffs can file lawsuits that try to get broad remedies, almost like the national injunction, right? So you have class actions, which can represent thousands, hundreds of thousands of people.

23:37You have claims by states, right? So the state attorney general can file a lawsuit and get relief across the state, perhaps in some cases. And then this question of complete relief. Litigants are going to try to say, look, we need a broader injunction, almost like a national injunction, because it's necessary for complete relief. And so do you actually feel like these are going to be taken up most of what national junctions took up? Yeah, so it's something that I'm tracking very closely, and it's still early days. But I think so far there has been a lot of substitution, I think, that has occurred.

24:17We have to keep watching this, because it's only been a few months since CASA was actually decided. I want to talk about the relationship between lower courts and the Supreme Court, and that's been a major theme of the last year because the Supreme Court has, in so many cases, intervened through its emergency docket, its shadow docket, to stay lower court decisions. And I want to understand that before that, do you have any takes on why the court did this now? Why do you think the court decided this case this summer, when this issue has been percolating, so to speak, for the last decade? Yeah, it has been percolating for a while.

24:56And as late as 2017 in Trump versus IRAP, which was one of the first challenges to the first Trump administration's Muslim ban, the Supreme Court itself allowed for injunctions to remain in place that protected not just the plaintiffs, but those similarly situated to the plaintiffs. So as late as 2017, the court itself was allowing non-plaintiff protective relief to remain in effect, even though that relief wasn't necessary to provide complete relief to the plaintiffs. But it is true that in recent years, the court has had a number of opportunities to address the universal injunctions question, but a lot of them have come tied to challenges to administrative rules.

25:41So they've also included this question about what the Administrative Procedure Act allows. And I think that might have impeded the desire of the court to take up the question because the justices may not be in as much agreement on that question as they appear to have been on the question of the universal injunction simpliciter, like the raw universal injunction stripped of any APA guard. So ultimately, then, the court chose to grant it in this case or decide the issue in this case. And I have to say that I am glad that it was this case that the court chose to address the question in, in the sense that I think that this case really did make Stark the very severe potential consequences of not having an ability to give broad remedies.

26:35Because this case is about birthright citizenship, because birthright citizenship is, you know, and because citizenship is so fundamentally important, because the executive branch's action here is so far out of line of previous precedent and executive branch practice. For all of those reasons, I think that the stakes were crisply presented here in a way that must have brought home to the court how important its decision would be. So I'm glad that it considered this question in this context rather than in the context of some super boring rule that regulates financial institutions or smokestacks or something.

27:18Yeah, and you're basically focusing on the merits of the case and the stakes of the case, the implications of the case. I think there's a larger question about how the court is reacting to the Trump administration. And lots of critics have said, well, why didn't the court do this during the Biden administration? Why didn't they limit the lower courts order? My question is more, why didn't they do this a year from now, given that it is disarming lower federal courts dramatically in a very heated time? But maybe the court felt like, no, it was important to disarm federal courts because it was actually taking legitimacy away from the courts to be seen to clash with the president so much.