Trump v. CASA, which the Supreme Court decided yesterday, is a consolidation of three cases in which district courts enjoined President Trump's executive order purporting to deny birthright citizenship to children of aliens not lawfully present in the United States or present only as temporary visitors. The Court didn't address the merits (although the principal dissent did); the Court had agreed only to consider with the injunctions were permissible as so-called "universal injunctions" going beyond the claimants in the cases. The Court held that they were not.
Although from an originalist perspective I think the executive order is unconstitutional on the merits, on reflection I'm persuaded by the Court's view of the injunctions. (In a separate post I'll consider what the dissent said about the merits.)
Justice Barrett wrote for the 6-3 majority that federal courts have statutory authorization to provide equitable remedies (such as injunctions) only to protect parties. Relying heavily on Justice Scalia's opinion for the Court in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999), she concluded (a) that the Judiciary Act 0f 1789, which is (perhaps surprisingly) the governing statute, gave federal courts the equitable powers of the English courts, and (b) English courts did not have equitable powers to issue anything analogous to universal injunctions (that is, broadly enjoining conduct as to non-parties). Indeed, she added, "[t]he universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority. See Grupo Mexicano, 527 U. S., at 318–319. That the absence continued into the 20th century renders any claim of historical pedigree still more implausible."
I think that's probably right as a technical matter, and I think there's a bigger principle behind it. As Chief Justice Marshall said in Marbury, the power of courts — the Article III "judicial Power" — is to resolve individual disputes. It is not to act as a supervising authority overseeing as a general matter the constitutionality of the executive and legislative branches. In a system of checks and balances, one of the key checks on courts is that they are limited to deciding cases that are brought to them. Thus it follows that the court's role, where it finds a constitutional violation in a particular case, is to provide the injured party before the court with a remedy. It is not generally to assure that the executive or the legislature complies with its view of the law in all situations. And a "universal" injunction that prohibits conduct as to all persons, including those not before the court, does not provide the parties that are before the court with any remedy.
Justice Barrett gets to a version of this principle toward the end of her opinion, in a sharp response to Justice Jackson's dissent:
The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever. Waving away attention to the limits on judicial power as a “mind-numbingly technical query,” post, at 3 (dissenting opinion), she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to “order everyone (including the Executive) to follow the law—full stop.” Post, at 2; see also post, at 10 (“[T]he function of the courts—both in theory and in practice—necessarily includes announcing what the law requires in . . . suits for the benefit of all who are protected by the Constitution, not merely doling out relief to injured private parties”); see also post, at 11, n. 3, 15. And, she warns, if courts lack the power to “require the Executive to adhere to law universally,” post, at 15, courts will leave a “gash in the basic tenets of our founding charter that could turn out to be a mortal wound,” post, at 12.
Rhetoric aside, JUSTICE JACKSON’s position is difficult to pin down. She might be arguing that universal injunctions are appropriate—even required—whenever the defendant is part of the Executive Branch. See, e.g., post, at 3, 10–12, 16–18. If so, her position goes far beyond the mainstream defense of universal injunctions. See, e.g., Frost, 93 N. Y. U. L. Rev., at 1069 (“Nationwide injunctions come with significant costs and should never be the default remedy in cases challenging federal executive action”). As best we can tell, though, her argument is more extreme still, because its logic does not depend on the entry of a universal injunction: JUSTICE JACKSON appears to believe that the reasoning behind any court order demands “universal adherence,” at least where the Executive is concerned. Post, at 2 (dissenting opinion). In her law-declaring vision of the judicial function, a district court’s opinion is not just persuasive, but has the legal force of a judgment. But see Haaland v. Brackeen, 599 U. S. 255, 294 (2023) (“It is a federal court’s judgment, not its opinion, that remedies an injury”). Once a single district court deems executive conduct unlawful, it has stated what the law requires. And the Executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere.
We will not dwell on JUSTICE JACKSON’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary. No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it). But see post, at 15 (JACKSON, J., dissenting) (“If courts do not have the authority to require the Executive to adhere to law universally, . . . compliance with law sometimes becomes a matter of Executive prerogative”). Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law.
JUSTICE JACKSON skips over that part. Because analyzing the governing statute involves boring “legalese,” post, at 3, she seeks to answer “a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?” Ibid. In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. JUSTICE JACKSON would do well to heed her own admonition: “[E]veryone, from the President on down, is bound by law.” Ibid. That goes for judges too.
I would add: courts do not operate outside and above the system of separation of powers as enforcers of it; they operate within it, subject to its checks. Though it may sound mundane when put that way, "doling out relief to injured private parties" is the judicial function, even when greater issues are at stake. In the end, the case is a call for judicial modesty (of district courts in particular).
(Congratulations to originalist-oriented scholars Will Baude, Sam Bray and Michael Morley for citations in the opinion.)
UPDATE: Jonathan Adler at Volokh Conspiracy quotes and discusses generally favorable reactions to the opinion from Professor Bray and from Nicholas Bagley. Ilya Somin has a differing view: A Bad Decision on Nationwide Injunctions.
Posted at 6:20 AM