High Court Weighs Future of Lower Courts’ Nationwide Injunctions

District courts increasingly have used nationwide injunctions early in litigation, temporarily blocking federal regulations while the courts consider the rules’ ultimate legitimacy. 

The U.S. Supreme Court may soon prevent lower courts from using this power when it decides a procedural issue that’s part of several birthright citizenship cases.

“The use of nationwide injunctions has increased substantially in recent years,” said Ted Chiappari, an attorney with Duane Morris in New York City. “There is concern on both sides of the political spectrum about this development, and some within the judicial system also worry that the nationwide injunctions allow district courts to exercise more power than they should have.”

District courts have issued nationwide injunctions, also known as universal injunctions, in numerous cases. A federal judge in Texas, for example, issued a preliminary injunction to block the 2016 overtime rule. More recently, the U.S. District Court for the Eastern District of Texas vacated the 2024 overtime rule.

Supreme Court Justice Neil Gorsuch “has criticized nationwide injunctions in the past,” said Amanda Brown, an attorney with Fisher Phillips in Dallas and Houston. “But during oral argument, he raised concerns about the proposed alternative — class actions — noting that it takes time to certify a class and class certification is a challenging procedural hurdle that must be cleared, all while the alleged harm is ongoing.”

Background

The birthright citizenship cases before the court, consolidated into Trump v. Casa, involve stakeholders’ claims that a Jan. 20 executive order (EO) issued by President Donald Trump was unconstitutional. That EO, “Protecting the Meaning and Value of American Citizenship,” said that children born in the U.S. are not automatically citizens if their parents are present in the country unlawfully or lawfully but temporarily.  

Birthright citizenship is based on the 14th Amendment of the Constitution, which states, “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 amendment was adopted in 1868, and the Supreme Court has upheld birthright citizenship multiple times since then.

Nationwide Injunctions

District courts in Maryland, Massachusetts, and Washington state issued nationwide injunctions prohibiting the Trump administration from enforcing the EO, noted Jim Plunkett, an attorney with Ogletree Deakins in Washington, D.C. The administration then filed emergency applications with the Supreme Court asking it to grant partial stays of the lower court injunctions.

The issue before the Supreme Court is whether it should allow the federal judge hearing the case to issue nationwide preliminary injunctions, said Marta Fernandez, an attorney with Jeffer Mangels Butler & Mitchell in Los Angeles.

“The government is requesting that the district court not be allowed to issue a nationwide injunction in this case,” she said. “Depending on the court’s ruling, it could be narrow enough that it only applies to this case; or general, such that it applies to all, or a large number of cases where issuing a nationwide injunction might be appropriate.”

Nationwide injunctions are a powerful legal tool and are usually granted early in a lawsuit. To get one, a party must show it will suffer serious and immediate harm without the injunction. The court will look at how likely each side is to win at trial and consider any effects the injunction might have on others or the public.

If the Supreme Court decides universal injunctions are not a tool a district court can use, HR can anticipate more new regulations to go into effect, only to ultimately be undone by higher courts, according to Kelli Hayes, an attorney with Thompson Hine in Columbus, Ohio.

“If there are no so-called universal injunctions, whichever administration is in power — Democrat or Republican — is likely to be more successful in enacting and implementing its regulatory agenda,” Plunkett said. “If the court limits the use or applicability of nationwide injunctions, this could result in government policies applying to some stakeholders or in some jurisdictions, but not others.”