Unpacking the Supreme Court’s ‘Universal Injunction’ Decision

The Supreme Court in Washington on June 25, 2025. Madalina Kilroy/The Epoch Times

Commentary

This essay explains Trump v. CASA, the June 27 Supreme Court ruling against universal (“nationwide”) federal injunctions. We’ll take on this complicated subject step by step.

Let’s begin with some terminology. An injunction is a kind of court order directing a person to do, or (more commonly) not to do, something. A preliminary injunction is an order (usually) freezing the status quo temporarily, until a court has a chance to consider the merits of a case.

Although Trump v. CASA often is called the “nationwide injunction” case, it was not really about nationwide injunctions. It was about universal injunctions.

Nationwide injunctions are uncontroversial if they apply only to a party in a case or against a party in the same case. If Smith is harassing me and I go to federal court to stop him, the court can prevent him from harassing me anywhere in the United States. That’s a nationwide injunction, and it is legal and appropriate.

But if the court rules that Smith cannot harass anyone—including people who have never asked for relief—then that’s a universal injunction. Trump v. CASA considered three trial court preliminary injunctions that were universal. They prevented enforcement of an executive order against anyone.

The Executive Order

The Constitution’s 14th Amendment reads in part, “All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Prior presidential administrations operated on the assumption that the 14th Amendment means this: Everyone born within U.S. territory (other than the children of foreign diplomats) is a natural-born citizen. However, on his Inauguration Day, President Donald Trump issued Executive Order 14160. This order said that the executive branch was changing its position. With some refinements, the executive branch would consider as foreigners any children of foreign mothers who were either illegally in the United States or merely visiting the United States.

I’ll make a brief comment on the merits of this executive order—and how its critics are approaching it—at the end of this essay.

The Power of Federal Courts

The Constitution creates only one federal court: the U.S. Supreme Court. The Constitution merely authorizes Congress to create others (“inferior Courts”) (Article III, Section 1). Congress has created inferior courts by statute.

The Constitution also lists the powers that Congress may confer on these federal tribunals. Article III, Section 2 states, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their [i.e., the United States’] Authority.”

The phrase “law and equity”—often referred to as “common law and equity”—refers to the two most important branches of our civil jurisprudence. We inherited them from the English legal system. This meaning of “equity” has nothing to do with the word’s appropriation by modern “diversity, equity, and inclusion” promoters.

Injunctions are issued in equity cases but not in common law cases.

The Constitution authorizes, but does not require, Congress to give equity powers to U.S. courts. However, the very first Federal Congress passed the Judiciary Act of 1789, which granted those courts jurisdiction over “all suits ... in equity.” This statute is still largely in effect and remains the source of federal court equity powers.

The Issue Before the Supreme Court

When interpreting a statute, the ultimate goal is to recreate the understanding (“intent”) of the legislature that passed it. Accordingly, in Trump v. CASA, the Supreme Court inquired whether the 1789 Congress intended to grant federal judges authority to issue universal injunctions.

Neither the statute’s text nor the congressional debates addressed this question directly. Accordingly, the Supreme Court examined the law of 1789 to learn whether “equity” then included universal injunctions. The answer was “no.”

Justice Amy Coney Barrett wrote the opinion for the court. She was joined by Chief Justice John Roberts and by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Barrett observed that in 1789, universal injunctions were unknown; they were not created until the 20th century. They did not become common until the 21st century. Hence, she concluded, they were not part of the equity power Congress gave to federal courts. Any federal judge issuing a universal injunction exceeded his authority.

The Dissents

Justice Sonia Sotomayor wrote the principal dissent for herself and for Justices Elena Kagan and Ketanji Brown Jackson. Jackson penned a separate dissent.

Jackson’s dissent has been the subject of a good deal of mockery. Some have described it as a recipe for “judicial supremacy.” As Barrett pointed out, Jackson seemed to assume that a court can right any legal wrong, irrespective of whether it has the legal power to do so. But as Barrett noted, judges always are constrained by the law’s limits on their jurisdiction. She cited the famous case of Marbury v. Madison (1803) as an example. In Marbury, Chief Justice John Marshall found that Secretary of State James Madison had acted illegally—but the Supreme Court did not have constitutional authority to grant a remedy.

Yet Jackson’s opinion has some merit as well. It includes stirring, and entirely true, language on the nature of our republic and of the rule of law. In my view, that makes it worth reading.

Sotomayor’s principal dissenting opinion argued that the majority was construing the scope of “equity” too narrowly. She also observed that courts of equity traditionally could grant a remedy called a “bill of peace,” which was effectively an injunction in favor of non-parties. But as the majority pointed out, bills of peace were more limited than universal injunctions. Moreover, bills of peace have been superseded by class actions. Class actions are subject to stringent rules, and universal injunctions allow plaintiffs to unfairly evade those rules.

The dissent further argued that universal injunctions were similar to decrees in taxpayer actions—that is, suits brought by some taxpayers on behalf of all taxpayers. One problem with this argument is that taxpayer actions were unknown when the Judiciary Act of 1789 was adopted.

An Irony

In dismissing the “taxpayer action” argument, the court was abiding by a practice it generally has followed for over a century: banning from federal court most constitutional challenges brought by some taxpayers on behalf of all taxpayers. This ban dates from two 1923 companion cases: Frothingham v. Mellon and Massachusetts v. Mellon. They dismissed state and taxpayer challenges to a federal welfare-spending program. The challengers claimed the program violated the 10th Amendment by intruding on the exclusive jurisdiction of the states.

Constitutionalists were disappointed by these decisions, because doubts about the legitimacy of much federal social spending are strongly supported by the Constitution’s text and ratification history. The two decisions allowed federal social interventions to gain momentum—all the way to the level where they now consume most of the federal budget.

Yet while these two cases have frustrated constitutional challenges from the right side of the political spectrum, in Trump v. CASA they frustrated a challenge from the left side of the political spectrum. In his concurring opinion, Thomas indirectly noted the irony.

The Dissents and the Executive Order

A principal flaw in the dissenting opinions is that they jumped to the conclusion that Trump’s executive order was illegal before reviewing full and fair argument on the subject. Thus, Sotomayor began her opinion by flatly declaring, “Children born in the United States and subject to its laws are United States citizens.” (Actually, she misquoted the 14th Amendment: It says “jurisdiction,” not “laws”; they may not mean the same thing.)

Sotomayor then went on for page after page arguing that the executive order was unconstitutional.

Admittedly, in considering a request for a preliminary injunction, a court must give some attention to the merits of the case. But the scope of “birthright citizenship” is a difficult issue, and there is respectable opinion on all sides. Even Sotomayor qualified her initial statement later in her dissent.

The assumption that Executive Order 14160 is unconstitutional—because birth in the U.S. always guarantees citizenship—seems to be an article of faith among many academics and Trump critics. But that assumption may well be wrong. It is an issue I have researched at length, and will be researching more. My current view is that both sides are partly right and partly wrong. I think it is pretty clear that Trump is correct in saying that the children of illegal aliens are not natural-born. And his opponents are probably correct in saying that children of aliens legally visiting the country are natural-born. The reasons for these conclusions are complicated, and are discussed here and here.

Americans are entitled to a Supreme Court decision issued only after all sides have their say and the question has been thoroughly briefed and considered. I believe that most of the justices recognize this—which is why they deferred the matter to a later day.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.