Nathan Warrell

November 28, 2025

In recent years, it has become evident that the contemporary decisions of the Supreme Court have drastically altered historical precedents and laid the way for future policy changes that have previously been constitutionally ambiguous. One of such decisions heavily restricts a federal judge’s ability for judicial remedies, or a judge’s ability to temporarily solve an issue while the case is argued in a court of law. This is, of course, the universal, or nationwide, injunction, which halts an action, typically an executive order or policy, until the constitutionality of the issue is ruled in a federal or the Supreme Court. That halt is tentative on the final decision of the court. In other words, a universal injunction prevents a policy from being enforced anywhere in the nation until it is determined to be legal and constitutional. This is distinct from a regular injunction which simply prohibits the policy from impacting the plaintiff or plaintiffs, if the case is a class action, until a court rules on the legality of the issue. Proponents of universal injunctions say they offer a key check on the power of the executive branch, as appeal cases can often take years to go through the court system and universal injunctions offer immediate relief to all those harmed by a policy that may be unconstitutional. Conversely, others claim that universal injunctions are the result of the politicization of the judicial branch and are simply examples of judicial activism by unelected, powerful judges. Judicial activism refers to judges ruling based on political ideals in replacement of legal principles. Furthermore, the ambiguity of the judicial branch in Article III of the Constitution leads to some believing nationwide injunctions to be constitutional overreach, while others see nothing prohibiting the courts from issuing such injunctions, as injunctions as a concept are acceptable and outlined in the Judiciary Act of 1789. Differences in opinions of universal injunctions almost always fall between party lines, as the party in support of the policy being halted will oppose the injunction and vice versa. The Supreme Court ruled in Donald Trump v. CASA Inc. (2025) that universal injunctions are most likely unconstitutional and limited judges’ ability to issue such injunctions, citing a lack of historical precedent and nationwide injunctions coinciding with judicial activism. This reveals an ironic situation in which judicial activism by the lower courts is limited by the same type of activism seen on the Supreme Court.

A History of Universal Injunctions

Though the majority opinion claim in Trump v. Casa cites a lack of historical precedent in support of the universal injunction, the judicial remedy does have a history in the United States, something Justice Sonia Sotomayor is quick to mention in her dissent. The first universal injunction is ruled in Lewis Publishing Co. v. Morgan (1913) in which Lewis Publishing Company challenged a new law that required any publications in the United States postal service to disclose the company’s owners, editors, financial backers, as well as mandating the clear labeling of advertisements . The plaintiff argued these provisions violated freedom of the press and as a result, the Supreme Court ordered the policy to not be enforced until the court could hear arguments and vote on a majority opinion. As a result, no publishing company in the country would be forced to disclose any aforementioned information until the court could make a ruling [1]. This is the first example of a universal injunction and sets initial precedent for future cases. This would act as precedent for future greater injunctions in the following decades such as Chicago Board of Trade v. Olsen (1923) and Hill v. Wallace (1922) [1]. In both these cases, injunctions were made that applied to those not directly involved with the case, however, there is an important distinction: these cases were not common during the time period. As compared to the modern universal injunction, similar injunctions from the early twentieth century were incredibly uncommon, and because of the infrequency, no legal groups accused the courts of judicial activism. Additionally, these early examples did not challenge an action of the executive branch, a fact the modern nationwide injunction cannot claim. From the three examples mentioned, two challenged acts of Congress while the other challenged local trade restrictions. The later shift to challenging executive authority inherently leads to further challenges of the constitutionality of universal injunctions as the Department of Justice, an executive agency, has the ability, resources, and prerogative to fight these rulings and bring the issue to the attention of the general public. Through this reasoning, many see the modern universal injunction as a check on executive power, seeing it as a necessary power of the courts. 

Additionally, there exists historical precedent for the limitation of universal injunctions by lower courts, demonstrating the court’s’ ability to be flexible in principle regarding universal injunctions and establishing a constitutional framework for future restrictions on the practice. The Supreme Court case Perkins v. Lukens Steel Co. (1940) challenges the Walsh-Healey Act, also known as the Administrative Procedure Act, which mandated any steel bought by the United States government to be procured by a company that obeys a “prevailing wage” set by the Secretary of Labor. Several steel companies sued the Department of Labor Secretary Frances Perkins, citing the expected wage was too high and breaching freedom of commerce [4]. Additionally, the steel companies argue the Walsh-Healey Act is unconstitutional, delegating too much Congressional authority to an unelected Secretary of Labor. The steel companies had no way to appeal to this set wage and argued meeting this wage would harm their business irreparably. They asked D.C. Federal District court for a “broad injunction,” as the term universal injunction did not exist yet, and the court abided, granting all steel companies nationwide freedom from this minimum wage and allowing these companies to sell to the United States government [3]. 

On appeal, the Supreme Court immediately reversed the injunction made by the lower court claiming the steel companies had no standing and the District Court went beyond their capabilities to grant the broad injunction. The rationale behind the superior court’s decision follows rather simply: the United States government has the right to buy steel from whomever they choose and it is not the right of the steel companies to challenge the Secretary of Labor’s prerogative for the purchasing of steel. To use the words of the majority opinion, the steel companies had no right to “represent the public’s interest” in regard to the powers of the Secretary of Labor outlined in the Walsh-Healey Act [3, 4]. This is the first time a universal injunction has been eversed prior to a final ruling made by the court and marks the initial constrainment of universal injunctions as judicial remedies. This case would become one of many used in Amy Coney Barrett’s majority opinion in Trump v. Casa over a quarter-century later which will heavily restrict universal injunctions.

Although since 1940 there have not been further cases that restrict universal injunctions, as it was not necessary to restrict them further, due to their rarity. Even in examination of recent administrations, President Bush in his eight years in the white house only saw six executive actions halted due to universal injunctions, three from Republican appointed judges, and three from Democratic appointed judges. In Donald Trump’s first term in office alone, sixty-four of his executive actions were halted due to universal injunctions levied by a district court and out of those sixty-four, fifty-nine of them were issued by a judge appointed by a Democratic president [6]. There is a concern for an accelerated instance of judicial activism, a phenomenon when appointed judges rule based on their own personal political beliefs or the beliefs of the party that appointed them instead of impartial legal principle. Additionally, many see instances of forum shopping, when a law, executive action, or other legal principle is challenged in a municipality where they are likely to get a favorable outcome. This was the accusation of some in regard to Trump v. Casa Inc., Casa Inc. itself being based in Maryland while the class action represented those nationwide, now able to have their case heard in the District Court of Maryland.

Modern Restrictions

One justice on the Supreme Court holding no reservations of his opinion of judicial activism is the long tenured Clarence Thomas, using his concurring opinion in Trump v. Hawaii (2018) to express his concerns regarding the increased use of universal injunctions. This Supreme Court case refers to President Trump’s travel ban from seven countries his administration deemed to be proposing an exceptionally high risk of terrorism. This travel ban is often referred to as the “Muslim Ban.” In this case, the Federal District Court of Hawaii issued a nationwide injunction, halting the immigration and travel ban, while the case worked through the Appellate Court and eventually the Supreme Court. The Supreme Court later said, in a five-to-four decision, the ban is indeed legal and that the president through the Immigration and Nationality Act has broad discretion to limit or withhold immigration and travel for non U.S. citizens into the United States [8]. The majority opinion did not declare the injunction made by the Federal District Court of Hawaii to be unconstitutional, however, Clarence Thomas disagrees on this principle in his concurring opinion, of which, no other justice joined [7]. 

Thomas is known for writing concurring opinions that typically encourage the reexamination of historical court precedents. Thomas holds the record for the most concurring opinions of any Supreme Court Justice, authoring over two-hundred-fifty during his time on the court thus far [7]. Thomas exhibits his opinion of universal injunctions clearly and firmly in the opinion. He expresses his concern with the constitutionality of the practice and its absence for a majority of the country’s history, citing Federalist 78 as well as a lack of any form of the practice in Anglo-American judicial systems until the mid twentieth century. Thomas does cede that universal injunctions can be necessary to protect all persons involved in a case and should not be deemed unconstitutional. What he does argue is the increased use of the practice, most likely referring to judicial activism, will force the hand of the Supreme Court to debate its place in contemporary judiciary: “If [universal injunction] popularity continues, this Court must address their legality” [7, 9].

This is the first case of a Supreme Court justice demonstrating a critical view of universal injunctions in an official court opinion and opens discussion of a topic previously assumed to be allowed. A concerning counter point to this interpretation of universal injunctions is the question of who deems such an injunction necessary to protect all parties involved. This would normally be the duty of a district judge, however, this opinion inherently wishes to limit the power of the lower courts, thus making it ambiguous when a universal injunction is truly necessary or when a judge is pushing a political agenda. This may lead to personal violations of rights of United States citizens as non-plaintiffs are forced to wait until a final decision is made by an appellate court. This uncertainty is left mostly unanswered by Thomas’ concurring opinion and empowers criticism from the dissent.
Clarence Thomas’ concurring opinion would become reality seven years later as Justice Amy Coney Barrett wrote the majority opinion for Trump v. Casa Inc. (2025) heavily, yet with ambiguity, restricting the use of the universal injunction by lower courts. In the case, a Maryland based organization, Court Appointed Special Advocates Incorporated, challenges Executive Order 14160, “Protecting the Meaning and Value of American Citizenship,” an executive order seeking to redefine birthright citizenship to not include children born of parents in which neither is in the country legally. Under this executive order, those born in the United States of parents of illegal status would be eligible for deportation. Casa Inc. challenges this order primarily based on the Fourteenth Amendment which grants citizenship to “all persons born or naturalized in the United States.” The Federal District Court of Maryland had primary jurisdiction in this case and issued a universal injunction, preventing anyone under the aforementioned description from being deported until the constitutionality of the executive order could be determined [5]. 

Once this ruling was made, the Supreme Court heard the case. The court did not rule whether or not the order is constitutional or not, but ruled on the universal injunction “likely exceeds the equitable authority that Congress has granted to federal courts” to quote the majority opinion itself. In other words, Barrett declares that universal injunctions go beyond the authority allocated to them by the Judiciary Act [2]. She begins this argument through examination of the Judiciary Act of 1789, which grants the courts jurisdiction in “all suits in law and in equity” to quote the law. This has been interpreted to mean the courts have the ability for equitable remedies and thus grants them the power of injunctions, a power that is common amongst judiciaries in the global west. 

However, the fact that the first case of a universal injunction is found in Lewis Publishing Co. v. Morgan in 1913, it is beyond belief that the creators of the law imagined it used in such a way [10]. This is a common argument of the court, as the justices favor interpreting a law based on the lawmakers’ vision instead of a living document that changes based on contemporary context. Barrett goes on to argue that because of this lack of historical precedent in the decades following the Judiciary Act’s passing, it cannot be interpreted to include universal injunctions, as they did not exist. Barrett continues by citing colonial-era British legal statutes in which injunctions were confined to the plaintiffs, not generalized to an entire population or group of people not affiliated with the plaintiffs or included in a class action, if applicable. She then cites court cases in which this logic was used to deny a request for a universal injunction or similar action. 

Understanding Article III of the Constitution to be incredibly vague, the framers of the constitution believed it to be Congress’s duty to establish the procedures, powers and even the number of courts and justices to be contained within the jJudicial Branch. The Judiciary Act of 1789 gives the courts the ability to grant an injunction, but modern interpretations fail to grant them any power beyond that. Given the ambiguity of Article III of the constitution, as well as the vague nature of Judiciary Acts it remains unclear whether or not universal injunctions are legal or constitutional. This is ceded by both Justice Thomas in his concurring opinion in Trump v. Hawaii and Barrett in her majority opinion for Trump v. Casa. Both do not explicitly say universal injunctions are unconstitutional nor fully condemn the practice, but rather seek to limit its use. It remains essential to mention that these opinions would not be written if it were not for the apparent judicial activism in modern courts. Thomas explicitly states this in his opinion and the Barrett’s opinion is no doubt fueled by frustrations in regards to the frequency nationwide injunctions are used as she specifically states in the opinion: “During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions.” Barrett’s opinion dictates this ambiguity nationwide. The ruling states universal injunctions are only to be used when necessary “to provide complete relief to each plaintiff with standing to sue” to once again quote the decision [2, 10, 11]. This definition of necessary is vague, which may lead to judges using the nationwide injunction just as often under the guise of necessity. The ambiguities left by the Constitution, Judiciary Act of 1789, and the continued lack of true definition from the Supreme Court leaves room for further questions and criticisms of the universal injunction. 

Criticisms

The Court’s three liberal justices did not join the majority, further demonstrating how this issue is often partisan. Justice Sonia Sotomayor begins her dissenting opinion by firmly stating that Executive Order 14160, redefining birthright citizenship, is in violation of the fourteenth amendment and the Naturalization Act, something the majority opinion did not comment on. She claims that because the majority failed to rule whether or not the order was constitutional speaks to the necessity of universal injunctions to prevent violations of the constitution while the Supreme Court has yet to make an official ruling. She later argues that the majority opinion’s interpretation of the universal injunction–only to be used when necessary–applies to Trump v. Casa. This case is a class action and the number of total individual plaintiffs number over 680,000 in all fifty states. A lower court declaring a geographical or limited injunction would not be sufficient in preventing the deportation of all plaintiffs. All to say, according to Justice Sotomayor, based on this new criterion of necessity, Trump v. Casa meets the requirement and should be issued a universal injunction independent of any Supreme Court ruling. She then states that three separate appellate courts agreed that a universal injunction is necessary, implying judicial activism amongst her peers on the Supreme Court, not in the lower courts [2]. This is a piece of irony not widely discussed in conversation regarding universal injunctions. In addition to legal and constitutional ambiguity, the primary argument against universal injunctions is the potential for judicial activism. However, in the Supreme Court’s limitation of such injunction, they themselves are participating in judicial activism, a point that will be expanded later on. 

Sotomayor continues by arguing that there is historical precedent for nationwide injunctions within colonial America as well as colonial-era Great Britain. In colonial courts, a plaintiff could file a motion for a Bill of Peace, which gave temporary immunity to those affiliated with the case until it could be resolved. Sotomayor argues this practice, found on both sides of the Atlantic, has evolved into contemporary universal injunctions, thus giving historical precedent for the judicial remedy. By acknowledging an earlier form of a nationwide injunction, the framers of the Judiciary Act would have known this as a traditional form of judicial remedy, and it may be interpreted to include nationwide injunctions in the law. Under this interpretation, Barrett’s argument of a lack of historical precedent would be invalid, as the Bill of Peace constitutes an earlier form of a universal injunction in Anglo-American legal systems [10]. Additionally, if a Bill of Peace is a precursor to a universal injunction, then it can be claimed that the lawmakers of the Judiciary Act knew of it, and thus, can be included under the law.

Other critics outside of the Supreme Court point out the irony in one of the most controversial Supreme Courts in modern history, ruling on several precedent defying cases, fighting judicial activism within the lower courts. Within the last five years the Supreme Court has overturned long standing statutes such as: the power of federal agencies when law is unclear in Loper Bright Enterprises v. Raimondo (2024), the ability for modern laws and legal rights to be applied to convicted criminals in Edwards v. Vannoy (2021), and most famously, the ability to for a woman to receive an abortion in the first trimester in Dobbs v. Jackson Women’s Health Organization (2022). With these major changes in addition to Trump v. Casa Inc., many believe the Supreme Court itself is practicing judicial activism. The claim is not unwarranted as these decisions have led to policy change across the country at all municipal levels and impacted the lives of many Americans. Many find it infuriating that the most politicized Supreme Court in recent memory, actively engaging in policy changes, chooses to spend its time fighting judicial activism within its own branch of government. 

The universal injunction has a rather long, controversial, history within the United States and it remains unclear the legality of such a judicial remedy and when it is legally necessary within a court of law. The division in opinion amongst the Supreme Court, lawmakers, and citizens typically falls along party lines, the right seeing it as a tool used by unelected judges to curb executive authority, while the left sees it as an important check on the power of the executive branch. It is important to note that much of the Judiciary system within the United States is built through acts of Congress and Congress does still hold the power to pass a bill legalizing, banning, or restricting the use of universal injunctions. However, as the nationwide injunction and Washington D.C. remain divided by partisanship, it seems unlikely one side would allow the other to modify this judicial quirk one way or the other. The future of the universal injunction is yet to be determined as its power has been limited, but not removed entirely, and only time will tell if this decision prevents subsequent use.

Image Credits: https://commons.wikimedia.org/wiki/File:Panorama_of_United_States_Supreme_Court_Building_at_Dusk.jpg

Works Cited

[1] Mila Sohoni, “The Lost History of the Universal Injunction,” Harvard Law Review 133, no. 3 (January 2020): 920-1009
[2] Armand Brice, Etong. “Equity’s Evolution Interrupted: The Supreme Court’s Redefinition of Judicial Remedies in Trump v. Casa, Inc.” SSRN Electronic Journal, 2025. https://doi.org/10.2139/ssrn.5332050.
[3] Kannan, Phillip M. “Perkins v. Lukens Steel Company: Fifty-Two and Counting.” Public Contract Law Journal 22, no. 3 (1993): 463–75. http://www.jstor.org/stable/25754101.
[4] Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).
[5] Congressional Research Service. 2025. Trump v. CASA, Inc.: Supreme Court Limits Nationwide Injunctions. CRS Legal Sidebar LSB 11331. July 1, 2025. https://www.congress.gov/crs_external_products/LSB/PDF/LSB11331/LSB11331.1.pdf
[6] Harvard Law Review, “District Court Reform: Nationwide Injunctions,” vol. 137, no. 6 (April 2024), 1701–[end of article], https://harvardlawreview.org/print/vol-137/district-court-reform-nationwide-injunctions/#footnotes-container
[7] Frost, Amanda, and Samuel Bray. “One for All: Are Nationwide Injunctions Legal?” Judicature 102, no. 3 (2018). https://judicature.duke.edu/articles/one-for-all-are-nationwide-injunctions-legal/
[8] “Trump v. Hawaii.” Oyez. Accessed October 21, 2025. https://www.oyez.org/cases/2017/17-965.
[9] Trump v. Hawaii, 585 U.S. 667 (2018).
[10] Trump v. CASA, Inc., 606 U.S. (2025).
[11] Robinson, Kimberly S. 2024. “Writings Show Conservative Justices Differ Even When in Majority.” Bloomburg Law. https://news.bloomberglaw.com/us-law-week/writings-show-conservative-justices-differ-even-when-in-majority.