The Supreme Court’s decision last week to curtail nationwide injunctions has forced those challenging President Donald Trump’s authoritarian power grab to explore other legal avenues.
The court’s ruling was a major blow to the effort to rein Trump in. Nationwide, or “universal,” injunctions — in which a single district court judge can block enforcement of a federal policy across the country — were the most effective way to halt the flurry of illegal and unconstitutional orders issued by the White House since January.
Still, other paths may exist, legal experts told Democracy Docket. The court left alone broader injunctions that can serve a similar purpose to a nationwide injunction. And it appeared to clarify that injunctions could still be universal if that’s the only way to provide complete relief.
But some warned that these alternatives will likely be much slower, more fraught with stumbling blocks, and more advantageous to the government.
Turning to Class Actions
Lawyers trying to stop Trump’s actions from causing widespread harm have often asked courts to issue nationwide injunctions. It’s a way to get relief for everyone, not just individual plaintiffs.
For example, blocking Trump’s executive order attempting to end birthright citizenship in only a few federal districts or states would still leave thousands of people without citizenship.
The Supreme Court’s majority opinion, written by Justice Amy Coney Barrett, noted that those seeking expansive relief can still do so through class action lawsuits.
Indeed, just hours after the court’s ruling, several plaintiffs suing to block the birthright citizenship order filed amended complaints asking courts to allow babies and expectant parents who are subject to Trump’s order to be counted as a class authorized to bring a lawsuit challenging the order.
But several legal experts questioned whether the idea is viable.
Class actions are brought by a small group of plaintiffs seeking to represent a larger class of people similar to them to obtain damages or court orders blocking particular actions. But there are strict rules on who can be included in a class.
David Sugerman, an Oregon attorney who has litigated class actions for around three decades, told Democracy Docket that they can be complex and more time consuming than other types of lawsuits. He said those pursuing them are likely to hit obstacles, in part because of other major Supreme Court rulings in recent years.
Sugerman said the court, largely through rulings involving class actions against corporations, has steadily made it harder to certify classes — that is, to get a judge to agree that a small group of plaintiffs can stand in for a larger group of people who are similarly affected. Defendants now have significant leverage to pick apart classes and delay proceedings, he said.
In defending Trump’s executive order, the government will claim that the people seeking certification are too dissimilar to form a cohesive class, Sugerman said.
“What they’ll say is, ‘Every case is different. His citizenship facts are different from hers. She’s a felon. He’s illegal. They weren’t really born here,’” Sugerman said. “They can tie this up for a very long time.”
Administrative Procedure Act Suits
In his concurring opinion, Justice Brett Kavanaugh said the equivalent of a universal injunction could also be gained by asking judges to set aside new federal agency rules under the Administrative Procedure Act (APA). The law lets federal courts block new agency actions if they are found to be “arbitrary, capricious, an abuse of discretion or otherwise contrary to law.”
The APA establishes specific procedures that federal agencies must follow when creating, amending or repealing regulations, and makes those alterations subject to judicial review. It’s meant to promote fairness and transparency in government decision making, and to ensure that people or groups aren’t harmed by sudden changes in regulations.
A group of legal experts recently wrote that the APA offers a “universal, well-grounded alternative” to nationwide injunctions.
Indeed, dozens of APA lawsuits have already been filed against Trump’s actions and have, at least for now, blocked some of them.
For example, the American Federation of Government Employees has successfully prevented agencies from forming and implementing large-scale reductions of the federal workforce as part of Trump’s effort to gut the government.
But there are significant drawbacks to using the APA.
The law can’t be used to directly challenge a president’s actions. Instead, it can be used to oppose agency actions that derive from the president, such as a directive in an executive order. This means that in rare instances, the APA may not be available as a vehicle for challenging presidential actions.
There’s also an ongoing related debate on the scope of the APA and whether it allows judges to vacate federal agency actions, as the law says courts shall “set aside” agency actions that are unlawful.
The Supreme Court acknowledged this debate in its decision, saying that “Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.”
In the future, the court may address this question. For now though, relief akin to a nationwide injunction remains available through the APA.
‘Incidental’ Nationwide Injunctions in State Lawsuits
Evan Bernick, a Northern Illinois University College of Law professor, said that while the Supreme Court curtailed nationwide injunctions, it didn’t completely eliminate them.
Bernick said the court has left the door open for injunctions that provide relief on a national basis by coincidence, specifically in cases brought by states.
Though Barrett wrote in the majority opinion that “‘complete relief’ is not synonymous with ‘universal relief,’” she noted that sometimes court rulings “incidentally” provide benefits to parties not directly involved in lawsuits.
Barrett used an example of someone suing a noisy neighbor. Even though a court may order the reveler to turn down the noise in response to one lawsuit, the ruling doesn’t just benefit the plaintiff.
“That order will necessarily benefit the defendant’s surrounding neighbors too; there is no way ‘to peel off just the portion of the nuisance that harmed the plaintiff,’” Barrett wrote.
“The idea is that you can’t shut down this harm to this one person without also protecting the rest of the community,” Bernick said, adding that this dynamic has already been at hand in a lawsuit against Trump’s birthright citizenship order brought by attorneys general from 22 states.
When they initially asked a Massachusetts federal judge for relief, the states said they required Trump’s order to be blocked across the whole country because people could lose or gain citizenship as they traveled if Trump’s order was enforced on a state-by-state basis.
They argued that thousands of people losing citizenship just by moving around would cause pandemonium — not just for those people but also for state programs and services, which generally include rules around the immigration and citizenship status of recipients.
The judge agreed, deciding that an injunction that applied nationwide was necessary to provide these 22 states complete relief, even though the ruling would benefit states and people not involved in the suit.
Notably, the Supreme Court did not rule that the judge erred. Instead, it punted the matter to the lower courts.
“We decline to take up these arguments in the first instance,” Barrett wrote. “The lower courts should determine whether a narrower injunction is appropriate; we therefore leave it to them to consider these and any related arguments.”
The lower court overseeing the states’ case against Trump’s order is now doing just that.
The bottom line: Even though the court has significantly pared back nationwide injunctions, there are still alternative legal strategies available to obtain broader relief.
However, future injunctions against the government may be narrower, relief could be more limited and there’s a high risk of Trump’s orders being enforced in some areas of the country while being blocked in others.