A Polarizing Legal Stratagem — the National Injunction — Is Emerging as a Powerful Tool of Resistance to President Trump’s Agenda

President Trump’s emergency appeal to the Supreme Court in respect of birthright citizenship zeroes in on a practice that is becoming the bane of the 47th president’s efforts to redeem his campaign promises — the nationwide or “universal” injunction.A universal injunction is when a court binds the federal government not only in relation to the parties before it, but also nonparties from coast to coast. Mr. Trump is appealing the scope of three such orders, handed down by three district court judges, blocking nationwide his executive order on birthright citizenship.Mr. Trump’s appeal of those decisions comes before the circuit riders of the First, Fourth, and Ninth United States Appeals Circuits have had the opportunity to deliver a ruling. The 47th president is asking the justices to limit “injunctions to parties actually within the courts’ power” — meaning local rather than nationwide.The time could be ripe for such an appeal. Justice Neil Gorsuch has called the nationwide injunction a stratagem to “govern the whole Nation” from one courtroom and a phenomenon that presents “a question of great significance that has been in need of the Court’s attention for some time.” Justice Clarence Thomas goes even further, writing in the 2018 case of Trump v. Hawaii that they are “legally and historically dubious.” Mr. Trump argues that “universal injunctions compromise the Executive Branch’s ability to carry out its functions.”Mr. Trump argues: “Universal injunctions have reached epidemic proportions since the start of the current Administration.” He reports that district courts “have issued more universal injunctions” and temporary restraining orders “during February 2025 alone than through the first three years of the Biden Administration.” That is in addition to the cluster of injunctions relating to birthright citizenship.The Sun spoke to a legal scholar, Joshua Blackman, who reasons that at various points five of the Supreme Court’s conservatives — all save Chief Justice Roberts — have spoken out against nationwide injunctions. That suggests there could be a majority open to the petition to reverse them. Mr. Blackman also notes that the injunctions here could be read as “Orwellian,” as they prevent the government from doing any work relating to the executive order.Justice Gorsuch reasons in a case from 2023, United States v. Texas, that universal injunctions appear to violate the constitutional mandate that the judicial power extends only to “cases and controversies” and must “avoid trenching on the power of the elected branches to shape legal rights and duties more broadly.” Mr. Trump argues here that the “universal injunctions here extend to all 50 States and to millions of aliens across the country.” The Trump administration’s frustration with judges issuing injunctions has grown as such orders have come down to impede plans to fire federal employees, slash government expenditures, and demolish diversity, equity, and inclusion initiatives, among other policy goals. Vice President Vance, who is a graduate of Yale Law School, took to X last month to declare: “Judges aren’t allowed to control the executive’s legitimate power.”Now Mr. Trump’s acting solicitor general, Sarah Harris, writes to the Nine: “Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.” Judges, though, have in the past been more inclined to grant nationwide injunctions in respect of immigration, an issue whose implications tend to be far-flung.Mr. Trump tucks another constitutional claim to his brief, which was written by Ms. Harris. The government contends that the district court judges granted “injunctions to States who plainly lacked standing to raise Citizenship Clause claims — defying the bedrock principle that States (like other litigants) may assert only their own rights, not the rights of third parties.” Some of the challenges to the executive order were brought by Democratic state attorneys general. A law review article from 2017 approvingly cited by Justice Gorsuch concurs with Mr. Trump, arguing, “No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction.” The author, Samuel Bray, reasons that judges are tasked with deciding “cases for parties, not questions for everyone.”For now, Mr. Trump is only asking the high court to narrow the injunctions that are frustrating his aims with respect to birthright citizenship. The time is coming, though, when the administration will have to argue for its reading of the 14th Amendment, which says in relevant part that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”The 47th president’s order mandates that “citizenship would be denied to babies who do not have at least one parent who is a U.S. citizen or legal permanent resident.” While some scholars argue that such a policy is consistent with the parchment, the majority contend that babies born to illegal immigrants are “subject to the jurisdiction” of America and are, therefore, citizens.

A Polarizing Legal Stratagem — the National Injunction — Is Emerging as a Powerful Tool of Resistance to President Trump’s Agenda

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