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“I don’t think it makes sense to resolve the issue based on whether the High Court of Chancery in England in the 18th century had such a power. No court in England could stop the king.”
—Dean Erwin Chemerinsky on universal injunctions
As a practicing attorney, I always enjoyed injunctive relief. Regardless of which side or client, I found myself gratified by the sheer economy of it all.
On one hand, having the affidavit of facts, the irreparable harm, and the justice of my argument, relief was just a matter of time.
On the other hand, it was satisfying to punch concise and timely holes in a petitioner’s claims, often without much notice or discovery. All in all, it could just be immediate fun.
When I became a judge, it became even better. Then, I had the opportunity to resolve some cases pretty quickly.
Rule 65 even allows for “consolidation on the merits,” meaning that many cases of legal substance, and no factual dispute, could be filed, briefed, heard and decided within a short amount of time—all for the benefit of all the parties.
Through the years, I have dimly noticed the phenomenon of the “universal injunction.”
Originally, injunctive relief was an inherited vestige of English courts of equity and the King’s Chancellor, who ruled with arbitrary discretion.
America’s Founders disdained the idea of any arbitrary exercise of government power as antithetical to the new experiment of democracy. Nevertheless, there were thinkers who saw a need for some sort of equitable discretion in our courts.
As Alexander Hamilton hinted in the Federalist Papers, equity should be limited and narrow, and only give relief in “extraordinary cases.” So Article III of the Constitution prescribes federal courts have power in “all Cases of Law and Equity.”
But the new Congress was understandably wary, so it passed the Anti-Injunction Act in 1793 to prohibit any federal injunction that would interfere with a state court, except in very limited circumstances.
The new federalism was still in its infancy, so the scope of federal court power developed from case to case.
Sometimes, injunctions appeared to be a matter of policy and sometimes a matter of law.
In 1903, in Ex parte Young, the U.S. Supreme Court allowed a plaintiff to sue in federal court to stop state officials from enforcing an unconstitutional statute. Debate still exists regarding whether it was a case of policy or law or both.
The next step, that is, whether a federal court order can apply to, and enjoin, non-parties besides a plaintiff who is subject to an offensive government action, seemed to gather traction in the early 20th century. Many Supreme Court decisions affirmed federal injunctions against offending state laws and actions.
Finally, this past Supreme Court term provided another decisive chapter, most notably Trump v. CASA, in which a presidential executive order barring “birthright citizenship” for American-born children of illegal immigrants was enjoined nationwide.
Appeals ensued after district courts ordered the practice stopped nationwide. The Court condemned the whole notion and practice of ”universal injunctions” as violating the Judiciary Act of 1789 and exceeding any equitable power of federal courts. It found equitable remedies available under the Judiciary Act cannot exceed the remedies available to the English Court of Chancery in 1789.
Back then, equity was limited to the plaintiff. Courts could enjoin the offending conduct of the parties before them, but not beyond. So now, any injunction entered by a federal judge can only be enforced with respect to the parties and the case before it, not anywhere else.
Commentators now envision a bipartisan and significant change in litigation practice when attacking state government actions in federal court, and perhaps beyond.
Parties now presumably will file more class actions, more duplicitous actions in multi-district areas and more piecemeal state actions.
Justice Brett Kavanaugh concurred in the CASA case, indicating that parties still have the “functional equivalent of a universal injunction” by filing “statewide, regionwide, or even nationwide” class actions.
So now my traditional joy about injunctive relief may be facing a very practical challenge.
What if all of our federal courts become filled with individual lawsuits against the latest executive order? What if all of our state trial courts become besieged with arguments for injunctions to halt federal actions against birthright citizenship? What if courts, state and federal, become embroiled in a growing number of expedited class action certification disputes?
It seems like the justices may be expecting it. Overall, the rest of us judges will be there—no matter what.•
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Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School.
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