Last week, a federal district court judge in Massachusetts blocked a provision in the One Big Beautiful Bill Act, which had been signed by the president three days before. The provision ended federal funding to the abortion provider Planned Parenthood. The two-page court order did not specify the legal reasoning behind the decision but ordered the federal government to continue to give money to Planned Parenthood.
This decision sparked immediate criticism, since the U.S. Constitution gives Congress the power to make decisions about spending federal money. Thus, a court order to federal officials to disburse federal funds raises concerns about the clear separation of powers.
Legal commentators also noted some connections to an important decision about the role of federal courts that the U.S. Supreme Court issued at the end of June. The Court’s decision in Trump v. CASA was significant, but the tendency to discuss the case in terms of whether Trump “won” and the underlying subject matter of the case can obscure its importance
What was Trump v. CASA about?
The case began as a challenge to an executive order by President Trump that purports to interpret the first sentence of the Fourteenth Amendment: “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.” Simplifying, the executive order suggested that the phrase “subject to the jurisdiction thereof” might significantly limit the guarantee of citizenship to those born in the United States.
Though the validity of that reading of the amendment is the genesis of the case, the Supreme Court decision was on another topic, the validity of “national injunctions” (or, as the Court pointed out, really “universal injunctions”). The decision arose out of a series of lawsuits brought in federal district courts throughout the country. Those challenging the executive order had asked the trial judges to issue injunctions preventing the order from being enforced.
What are national injunctions?
Injunctions are legal orders a court can issue to require a party to the lawsuit to do or not do something. They are an important tool to protect a party from harm that could result from the action or inaction of the other party.
One of the decisions leading to the Supreme Court decision is a good illustration. It involved a Venezuelan mother seeking asylum in the United States, worried that her child, when born in the U.S., would be denied citizenship. So, she asked for an injunction to keep the executive order from being enforced so as to prevent that denial.
The wrinkle here is that the injunctions sought in these cases did not only apply to those who were directly involved in the case, but to all officials anywhere in any situation where the order might be enforced, thus a national or universal injunction.
These types of injunctions have become controversial. While it seems uncontroversial that a court can issue an injunction to protect the person seeking it, it is not as clear that federal trial courts can or should be able to issue an injunction preventing any official from enforcing a law not only to protect the party seeking the injunction but every other person in the nation who could be effected by enforcement.
In other words, can a federal judge essentially block a policy enacted by the president and thus make national policy?
Universal injunctions were uncommon in the 20th Century but have become increasingly common. A helpful Harvard Law Review article notes six such injunctions during the George W. Bush administration, 12 during President Obama’s, then 64 during the first Trump Administration, and 14 during the first three years of the Biden Administration. A recent analysis of the first few months of the second Trump Administration identified 25 universal injunctions issued by district courts.
More striking is the change in partisanship of the injunctions. The Harvard article points out that the percentage of injunctions “issued by judge[s] appointed by president of the opposing party” rose from 50% for President Bush to 58% for President Obama to 92% for President Trump I to 100% for President Biden’s first three years.
Some caution is needed. Explanations other than partisanship or judicial overreach (such as an increase in bad presidential policies) may explain this rise, but its existence certainly justifies the Court’s attention.
What did the Supreme Court decide about national injunctions?
In Trump v. CASA, the majority of Supreme Court justices determined that the universal injunctions issued against the birthright citizenship executive order are likely beyond the authority of federal courts, so the injunctions could not go into immediate effect.
The Court noted that the law granting authority to federal courts, the Judiciary Act of 1789, did not give a broad grant to federal courts to issue orders that would affect the rights of those who were not parties to a lawsuit. It based its conclusion on a careful analysis of historical sources.
Federal courts can still issue injunctions to protect the parties to the lawsuit, but in the absence of authority for universal injunctions at the time of the founding, they exceed the power of federal courts.
It’s important to note that the Court decision does not address or settle the question of birthright citizenship under the Fourteenth Amendment. In a dissenting opinion, Justice Sonia Sotomayor made the case that the limitations on birthright citizenship in the Trump executive order are mistaken. Important commentary supports this conclusion, but resolution of that issue will have to come later.
What are the implications of this decision?
The dissenting justices argue that without the possibility of a universal injunction, courts may not be able to stop unconstitutional or illegal executive actions. In fact, Justice Ketanji Brown Jackson’s dissent argues that the decision would result in giving the president power to act outside the law. This is a serious, and bipartisan, concern.
The majority’s response is that the answer to executive misconduct is not judicial overreach. As Justice Barrett said in her opinion for the majority: “Justice Jackson would do well to heed her own admonition: ‘[E]veryone, from the President on down, is bound by law.’ That goes for judges too.”
What should happen now?
The Court’s decision leaves room for the federal courts to respond to presidential overreach. A court can certify a class action lawsuit that allows particular parties to represent the interests of others who will be bound by the court’s decision. In these cases, a court order can help all those who are affected by an invalid government action. Additionally, the Administrative Procedures Act allows a court to “set aside” an invalid agency rule.
The U.S. Supreme Court can also act quickly in cases challenging federal law.
Ultimately, though, Congress is probably best placed to act to ensure that the executive branch is kept in check. They could begin by dramatically reducing the power delegated to the executive branch. It could also grant power to invalidate unconstitutional laws, perhaps by giving authority to a federal court (ideally with multiple judges from around the nation) that would have authority to hear and decide on universal injunctions in appropriate circumstances.
This all may sound like a technical question (one of the dissenting justices suggested as much), but the implications can be profound. Each branch of government must stay in its lane. If that happens, ordered liberty can remain secure. To make that happen, each branch must also remain vigilant and play its constitutionally assigned role.
