Universal Injunctions Barely Existed Before 1963, So Where Did They Come From

Pick any federal judge in the country. One. Give him a lawsuit filed by one plaintiff, or three, or a state. Now ask: may that single judge, sitting in a single courthouse in a single district, forbid the entire executive branch from enforcing a federal policy against anyone, anywhere, in all fifty states, until the case is finished?

For most of American history, the answer would have startled the people asking. Today it happens so often that we have a name for it. We call it a nationwide injunction, or a universal injunction, and we treat it as normal. It is not normal. It is young, it is odd, and it has been used by both parties against the other. This post tells the story in order, with dates and names, and it is as much a warning for conservatives as an indictment of progressives.

Defining the Terms

A few definitions first, because the debate is full of sloppy ones.

An injunction is a court order directing a party to do something or stop doing something. It is a remedy, not a ruling on the merits.

A universal injunction (also called a nationwide injunction) is an order that protects people who are not parties to the case. It forbids the government from enforcing a law or policy against anyone, whether or not that person ever sued.

A party-specific injunction is the traditional kind. It forbids the government from enforcing the challenged policy against the plaintiffs in front of the court, and no one else.

Equity is the body of judge-made remedies, descended from the English Court of Chancery, that federal courts apply when money damages are inadequate. Injunctions are an equitable remedy.

The question is whether federal courts have the power to issue universal injunctions. Note that it is a question about remedies, not about whether a law is constitutional. A judge may be entirely right that a policy is unlawful and still lack the authority to say so for everyone.

What the Judiciary Act of 1789 Gave the Courts

Start with the statute. The Judiciary Act of 1789 gave the federal courts jurisdiction over "all suits in equity." The Supreme Court has read that phrase to mean that federal courts have the equitable powers that the English Court of Chancery had when the Judiciary Act was passed, no more and no less. The Court said so in Grupo Mexicano de Desarrollo v. Alliance Bond Fund (1999). That is a strong and sensible rule. If Congress gave courts the power of the Chancellor in 1789, the question for any new remedy is whether the Chancellor had it.

The Chancellor's practice was to decide disputes between parties and to grant relief to them. A plaintiff came before him with a grievance against a defendant, and the Chancellor's order bound the defendant for the plaintiff's benefit. There was no practice of issuing an order protecting every person in the kingdom who might have been in the same position. If you wanted that, you would find it in a statute, or in a legislature, or in a class action governed by its own rules.

That is the heart of the argument, and I will number it:

1. The federal courts' equitable power is the power of the Chancellor in 1789.
2. The Chancellor gave relief to the parties before him, not to the world.
3. Therefore a federal court's injunction should, as a rule, protect the plaintiffs and no one else.

Now test it against the record.

The Historical Record: Where Did It Come From?

If universal injunctions were ordinary in the early republic, we would find them. We do not. For much of the nineteenth and early twentieth centuries, a court that held a law invalid simply declined to apply it in the case before it, and the law remained on the books and applied to everyone else, until the government gave up or another case overturned it. The effect of a decision on other people came from precedent, not from an order.

The scholar who put this on the map is Samuel Bray, a law professor now at Notre Dame, whose 2017 article in the Harvard Law Review, "Multiple Chancellors: Reforming the National Injunction," collected the history and argued that the universal injunction is a modern development without good roots in the practice of equity. Bray wrote that there do not appear to have been any national injunctions through the middle of the twentieth century, and he identified Wirtz v. Baldor Electric Co. (D.C. Circuit, 1963), which enjoined a Secretary of Labor determination of the prevailing wage in an industry, as apparently the first. The point is not that one 1963 case invented the practice. It is that you have to go that far forward to find it, and that it was accepted by the federal courts only gradually in the decades afterward.

Notice how late that is. The Constitution is from 1787. The Judiciary Act is from 1789. The power, if it was ever there, went unused for roughly 170 years.

The Justices Notice

The Supreme Court took its time. In Trump v. Hawaii (2018), the case about the President's travel restrictions, Justice Thomas wrote a concurrence arguing that the universal injunction was "legally and historically dubious," drawing on Bray's work. He argued that the practice of lower courts blocking a federal policy for the whole country has no basis in the tradition of equity and creates problems of its own.

In Department of Homeland Security v. New York (2020), a case about a rule on public charge in immigration law, Justice Gorsuch wrote a concurrence making a similar point from a different angle. He argued that, however labeled, such orders direct how the government must act toward people who are not parties to the case, and he warned that a system producing them frequently might keep any new federal policy from taking effect. He framed it as a question about the judicial role. A court's job is to resolve the dispute before it, not to set national policy.

That is a conservative critique, but note the structure. It is neutral. It is not about which side wins. It is about who may decide.

The Steelman: Why Not Just Fix the Law for Everyone?

The strongest case for universal injunctions deserves a fair statement. If a policy is unlawful, the argument goes, then it is unlawful for everyone. A court that has concluded that a rule violates the Constitution or the statute should not require every affected person to file a separate lawsuit. That would be slow and costly, and it would create inequities: those who can afford a lawyer win protection, while those who cannot are left under the rule. When the government is the defendant, a patchwork of rules, applied differently in different states, is itself a kind of harm. The executive branch ought to be able to follow one rule, and a universal injunction gets it there faster than waiting for the appeals courts to sort it out.

There is also a point about the Administrative Procedure Act. That statute says a reviewing court shall "hold unlawful and set aside" agency action found to be unlawful. Some scholars read "set aside" to mean that the court wipes the rule off the books for everyone, which would make universal relief a feature of the statute and not an invention of equity.

Those are real arguments, and the vacatur question is the hardest one in the debate. But there are answers.

The Rebuttal

One: convenience is not a power. A court cannot assume authority because the result would be more efficient. The Constitution assigns the creation of general rules to Congress. If the remedy for an unlawful policy is a national rule of decision, Congress can provide it, and Congress knows how: it can pass a statute, or it can authorize class actions, which have their own safeguards. We covered the importance of that distinction between making law and deciding cases in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not.

Two: the system already has a mechanism for national relief, and it is slower for a reason. Class actions, governed by Rule 23, let a court bind a defined group after it checks that the representatives and the claims are properly aligned. Appeals to the circuit courts and the Supreme Court produce rulings with national effect. The delay these cost is the delay of deliberation. A system in which one judge may stop a national program on a Tuesday is a system in which a single mistake can reverberate across the whole country.

Three: the practice creates a lottery. If a single district judge can bind the whole country, then the smart move is to choose the judge. Litigants file in courthouses where they expect a favorable ruling, and the result is the phenomenon known as judge shopping. This is a bipartisan sport.

Four: it makes every case a referendum. A court that sets national policy invites the stakes of a presidential campaign into every federal courtroom. That is bad for the judges and bad for the public's view of them.

Both Parties Have Done It

Conservatives do not need to pretend that only the other side uses this tool. Here is the record.

During the Obama administration, a federal judge in Texas, Andrew Hanen, in 2015 issued a nationwide injunction against the administration's immigration program known as DAPA, which would have deferred deportation for certain parents of citizens and lawful residents. The Supreme Court affirmed that result by an equally divided vote in 2016. Conservatives cheered.

During the first Trump administration, district courts issued a series of national orders against the administration's policies, including the travel restrictions. Progressives cheered, and conservatives complained about the abuse of the courts.

During the Biden administration, the pattern repeated. Litigants challenging administration policies went to single-judge divisions in Texas, such as the Amarillo division, where a case filed there is assigned to the judge sitting in that courthouse. One such judge issued a ruling in 2023 that would have restricted access to a widely used medication nationwide. Conservative litigants chose that courthouse because they knew who would hear the case. The Judicial Conference of the United States responded in March 2024 with guidance encouraging district courts to use random assignment in cases seeking statewide or nationwide relief, so that a litigant could not pick his judge by picking his courthouse.

And progressive litigants have done the same thing in reverse, filing in districts where they expected a friendly reception. The pattern is symmetrical. Whoever is out of power runs to the courthouse that will help. That is the best argument for reform that conservatives and progressives can agree on: the next time, the shoe will be on the other foot.

The Court Steps In

In June 2025, in Trump v. CASA, Inc., the Supreme Court held by a vote of 6 to 3, in an opinion by Justice Barrett, that universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The case arose from challenges to the President's executive order on birthright citizenship, and the Court did not decide the merits of that order. It decided the narrower question of the remedy. The Court left open other ways to provide broad relief, including class actions and relief sought by states, and the question of how the APA's "set aside" language works remains unresolved. The ruling takes its historical logic straight from the 1789 argument above: the Judiciary Act gave the courts the equitable powers of the English Court of Chancery in 1789, and the universal injunction has no counterpart there.

The ruling is a good illustration of what I am saying. It was not a ruling about the merits, and it did not tell any president he may do what he likes. It told lower courts to stay within the powers they have.

What This Means for You

The fight is about more than procedure. Each time a single judge changes national policy, a citizen has to ask who made that decision and whether they answer to anyone. Courts that resolve disputes are doing their job. Courts that legislate have moved into a different branch's territory, and the voter has nowhere to send a complaint.

For related reading, see Standing Explained, the Doorway Rule That Keeps Courts Out of Politics, which explains the doorway rule that is meant to keep courts out of political disputes; The Emergency Docket Explained, and Why Both Parties Complain About It, where many of these fights now end up; and The Major Questions Doctrine Explained, From Tobacco to the Power Plants. The courts page collects further resources.

The case in brief

1. A universal injunction protects people who are not parties to the case, and the federal courts' equitable power is that of the English Court of Chancery in 1789, which gave relief to the parties before it.
2. The practice is a modern development: the earliest example Bray found, Wirtz v. Baldor Electric Co. (1963), is late, and Samuel Bray's 2017 scholarship, Justice Thomas's concurrence in Trump v. Hawaii (2018) and Justice Gorsuch's concurrence in DHS v. New York (2020) argued that it lacks historical roots.
3. Both parties have used it, and both have shopped for favorable single-judge courthouses, which is why a neutral rule serves everyone.
4. National relief remains available through legislation, class actions and appeals, which are slower and more deliberate by design.
5. In 2025 the Supreme Court held in Trump v. CASA that universal injunctions likely exceed the courts' equitable authority, leaving questions about class actions and the APA for later.

What you can do: look up the federal district court that covers your home state on its official website, read how it assigns cases, and ask your representative whether they support a requirement that nationwide-relief cases be assigned at random.