July 10, 2025
Trump v. CASA, Inc., 606 U.S. ____ (2025) (Barrett, J.)
Response by Alan B. Morrison
Geo. Wash. L. Rev. On the Docket (Oct. Term 2024)
Slip Opinion | SCOTUSblog
Trump v. CASA, Inc.: A Non-Universal Response to the Universal Injunction Problem
On the final day of the 2024 Term, the Supreme Court ruled in Trump v. CASA, Inc.1 that the three universal injunctions that barred the President from enforcing his Executive Order redefining birthright citizenship exceeded the power of the district courts that issued them. What other impact the six-to-three decision will have will be the subject of significant debate. Despite the predictions of disaster from the dissents and the proclamations of victory from the Trump Administration, this may be an example of the old saying that “things are never as good or as bad as they seem.” The only statement that is surely correct is that the problem is far from being solved, as Justice Amy Coney Barrett recognizes in the majority opinion.2
The problem that the Court set out to solve is not a new one, although it has accelerated in the nearly six months of the second Trump presidency, in significant part due to his very aggressive and controversial use of presidential power. Hundreds of lawsuits are filed in what are hoped to be friendly venues with the goal of stopping an executive order or overturning a regulation on a nationwide basis, often through a preliminary injunction (although the CASA decision did not turn on the procedural posture of the case). In the prototypical lawsuit, plaintiffs convince the district judge that they should prevail on the merits and argue that the challenged action applies everywhere, as does the applicable law, and so the district court’s injunction should forbid the President or the agency that took the allegedly unlawful action from implementing it anywhere in the United States.
In response, the Government argues that the district judge is wrong about the law and that the defendants have the right to appeal. Besides, as the Government points out, there are other cases raising the same issue and those judges may come out differently, especially because the plaintiffs have chosen to sue where the judge was likely to rule in their favor. The Trump Administration also pointed out that it must win all the cases to prevent a universal injunction, while only one plaintiff need prevail to bring the challenged government program to a halt. Indeed, during the Biden Administration, states and private plaintiffs used this approach with even greater effect because they were able to file suits in courts where there was a single federal judge whose views were known to oppose those of President Biden. In the birthright citizenship cases, each of the universal injunctions was affirmed on appeal, and to date no judge has agreed that the underlying executive order is valid.
As the Justice Department has done at least seventeen times since January 20, 2025, it sought a stay of these three universal injunctions, but this time with a twist. The law is clear that, when an appellate court is asked to stay the decision below, the most important factor in determining whether to grant the stay is the strength of the legal position of the party seeking the stay.3 In this case, however, the Solicitor General made the decision not to contest the legal merits of the rulings against the President and instead asked the Court to focus solely on whether district courts ever have the authority to issue universal injunctions. The request for a stay was also artificial, because the Government did not point to any specific harms resulting from these injunctions. Moreover, the Executive Order did not become effective until thirty days after issuance, and the contrary understanding of the birthright provision had existed for over one hundred years. Some of those who opposed this attempt to strike down all universal injunctions (this author among them) argued that the Government was seeking an advisory opinion, but the Court apparently disagreed, although it did not discuss that contention.
One defense of the Court’s willingness to decide the legality of universal injunctions in the abstract is that it is very difficult for the Supreme Court to find a case in which it can resolve the question. In the typical stay case before the Court, the Court must examine and come close to deciding the merits, at which point either the plaintiffs effectively win (if the Court agrees with them) or lose––but in either case, a Supreme Court ruling would have a universal effect, and there would be no need to grapple with the legality of universal injunctions. By isolating the issue as the Solicitor General proposed here, the Court was able to opine on universal injunctions without having to take into account the merits of the birthright executive order, which may explain the vehemence of the dissents.
Justice Barrett’s method of resolving the propriety of universal injunctions was straightforward. As she sees it, district judges only have the power to issue such orders as Congress (or the Constitution) provides. So far, so good. In her reading of the law, the only authority that bears directly on issuing universal injunctions against the President is the Judiciary Act of 1789, which she interpreted to authorize only the kinds of orders that were issued by courts of equity during the Founding Era. Because orders in that era did not include universal injunctions, and in the absence of any other authority, she concluded that district courts today have no power to enter universal injunctions. I leave it to others to debate whether her approach to determining what district courts may do today based on what they could do in 1789 is correct, as well as whether her rejection of the various analogies that the parties and amici put forth is justified.4 Rather, I accept her analysis and ask where that leaves litigants and lower federal courts going forward.
To her credit, Justice Barrett recognized that the decision in this case did not end the debate about the legality of universal injunctions even in this case, let alone in others arising in other contexts. First, these suits were against the President, who is not subject to the Administrative Procedure Act (“APA”),5 and not against administrative agencies that are. And since the APA is a statute, like the Judiciary Act of 1789, Justice Barrett’s approach could not answer the question if the case was brought under the APA. This is almost certainly why she included footnote 10:
Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action. See 5 U.S.C. § 706(2) (authorizing courts to “hold unlawful and set aside agency action”).
Because “agency actions” include rules as well as other orders, the “distinct question” left open is potentially a huge gap in the effect of this decision, which is limited to actions taken by the President. In fact, the birthright citizenship order, Executive Order 14160,6 is primarily a policy statement and an interpretation of section 1 of the Fourteenth Amendment, unlike the more typical executive order found in Youngstown Sheet & Tube v. Sawyer,7 in which the plaintiffs sued the Secretary of Commerce who was directed to carry out the order.
Even in Executive Order 14160, section 3(a) directs the “Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security” to “take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order.” These lawsuits were filed within hours after the Order was issued, at which point these named officials had not yet taken any action that injured the plaintiffs. But in a new case, or in an amended complaint, these plaintiffs could use the APA to sue these agencies (or their heads), avoiding the direct impact of the decision in CASA and perhaps obtaining a universal injunction under the APA against one or more of these officials, even as to this very executive order. It is a virtual certainty that the Department of Justice will argue that the APA does not alter the result here, while it is equally certain that litigants and some judges will disagree, leaving this alternate source of universal injunctions up in the air.
A second door that the majority left open is the class action, presumably one seeking declaratory or injunctive relief under Federal Rule of Civil Procedure 23(b)(2). The questions will be: how difficult will it be to certify the class; will provisional certification be enough; and how long will it take? Classes seeking money damages would not work for these purposes, because their certification is always complex and time consuming, and as Wal-Mart Stores. Inc. v. Dukes8 shows, even Rule 23(b)(2) class certifications can be fraught with difficulty. But those cautions should not apply to a case like birthright citizenship, in which there is a single legal issue with no facts in dispute as to the merits, and the result should not depend on where anyone in the class resides within the United States. Other classes may not be so useful, depending on the claim. Consider employees fired by an agency or grantees or contractors that were terminated. Are they all similarly situated, if some are probational, others have term of years contracts, and others can only be removed or cancelled for cause? Discovery on certification in class actions is common these days, and the need for that discovery may interfere with the desire of the class representatives to obtain immediate preliminary relief.
There is also a potential downside to nationwide class certification: The class may be certified, but the defendant may prevail on the merits in the court of appeals, and the Supreme Court may deny review. Counsel, or perhaps even the district court at the urging of some class members, will have to weigh that risk and may decide to limit the class to a state or perhaps those residing in the circuit where the case was brought. And if certification is denied because one of the many requirements of Rule 23 is not met, the delay in reaching that conclusion may cause the class members more harm than if the judge had limited the relief to the named plaintiffs. Even without class certification, a decision favorable to the named plaintiffs may, as a practical matter in some cases (such as birthright citizenship), protect similarly situated individuals from adverse consequences until there is a final judgment.9
The CASA case itself illustrates another way in which Justice Barrett’s decision does not solve the problem. CASA itself has no Fourteenth Amendment birthright protection, but its over 680,000 members who live in multiple states do. Thus, CASA is entitled to sue on behalf of its members, some of whom may be identified in the complaint or in declarations in a preliminary injunction judgment motion. The Court allows CASA to sue under an approach which it has referred to as associational standing, subject to a few limited conditions which would not be difficult to meet in this case. If the merits of the Executive Order are eventually decided by the Supreme Court, everyone will be subject to the final ruling. However, the key question for these purposes is whether a preliminary injunction like the ones issued in these cases will protect all their members or only those identified in documents filed with the court.
CASA is not alone in claiming protection for its members through associational standing. Other groups that have claimed associational standing include trade associations like the Pharmaceutical Research and Manufacturers of America or the Automobile Manufacturers of America, or even broader business organizations like the Chamber of Commerce. Similarly situated––but often on the other side––are individual labor unions like the Teamsters or the United Automobile, Aerospace and Agricultural Implement Workers of America, as well as umbrella groups like the American Federation of Labor and Congress of Industrial Organizations. Other frequent litigants that fall into the nonprofit branch of associational standing range from the American Civil Liberties Union, to the Sierra Club, to the Right to Work Legal Defense Fund, to the Cato Institute. And the fact that all of these groups rely on associational standing to bring their lawsuits does not mean that they will be treated identically in terms of which of their members, if any, will obtain immediate benefit from a court decision favoring the organization to which they belong. It is not hard to imagine which side of this issue the Government—no matter who is in the White House—will take.
Justice Barrett’s opinion also recognizes that, even under traditional principles of equity, the plaintiff is entitled to “complete relief,” a matter of considerable importance to the State plaintiffs and to a lesser extent to the individual plaintiffs in these cases. Taking the latter first, if an individual plaintiff (or more likely their parents) who prevailed in a case in the federal court in New Jersey traveled to or moved to Pennsylvania, where there was no such order, the issue would be whether the newborn child was protected in both states. In the cases brought by the States, States showed that the Executive Order inflicted serious harms on their residents and caused direct economic damages to the States, because the States’ rights to be reimbursed for Medicaid and other federal programs only extended to payments for persons who are citizens. For the States, they argued, complete relief must include protection with respect to children born in their state, even if they left the state, and children born elsewhere who moved into the plaintiff state. One conclusion about complete relief is clear: A plaintiff in cases like these has no current legitimate claim that granting everyone in the United States the benefits of a ruling in favor of the plaintiff is part of the plaintiff’s “complete relief” just because the district judge (and even a court of appeals panel) held that the challenged action was unlawful or even clearly so. There will likely be much litigation over what relief is needed for complete relief, and the outcome in each case will depend on the claims made and the facts proven.
There is another significant set of cases that the majority does not discuss. A large number of statutes provide for direct review of agency decisions in the courts of appeals, where a panel of three judges is sometimes asked to stay the agency decision pending appeal. For example, the Hobbs Act,10 which became law in 1950, directs judicial review of certain agency actions to the courts of appeals. There are also a number of statutes, including the Clean Air Act,11 which also bypass the district court, generally because review is based on the record made at the agency level. In many of these cases, the petitioning party seeks a stay to halt the agency action everywhere, similar to the orders issued in CASA. But those stays do not seem to have been included in the part of the majority opinion suggesting that universal injunctions are a new phenomenon.
Although particular appeals court interventions to stop a rule, either preliminarily or after full briefing, have been controversial, there has not been a widespread objection to them. There are two possible reasons for this, which suggest possible solutions to the larger problem. First, in 1988, Congress created a lottery process of consolidating all challenges to the same agency action in one court of appeals where there is a time limit for seeking review.12 That process eliminates the objection that the Government had to win all of its cases to avoid having its actions overturned, and the lottery aspect largely ended the forum shopping objection. Second, having three judges make the initial determination is seen by some as lessening the concern that one district judge’s decision stopping a rule or other decision from being implemented anywhere is inherently arbitrary and unwise. In prior essays,13 I have advocated for a legislative solution of requiring three-judge district courts for all cases in which the plaintiff seeks a universal injunction, with direct review by certiorari to the Supreme Court, but that idea has not received significant support to date.
There are other categories of cases in which the relief being sought does not look like a universal injunction but has a similar effect. Consider the Steel Seizure case,14 in which the legality of the President’s order was at issue. Either the stay was authorized, or it was not, and either way it would be almost unthinkable if some competitors obtained the benefit of a preliminary injunction and others, who did not sue or did not sue soon enough, did not. The same is also true in cases challenging agency regulations that affect an entire industry, although that problem is alleviated because many––but by no means all––of those cases must be brought in a court of appeals, where there seems to be less controversy over stay orders that are universal in scope.15
Orders to agencies that are less than universal not only raise issues of fairness among similarly situated entities, but also serious issues of workability for an agency. Take the cases challenging the tariffs that the President imposed against most imports from most countries. Two lower courts have found the tariffs to be unlawful and ordered them to be set aside, followed by stays and expedited appeals.16 Assuming after CASA that the injunctions can only benefit the named plaintiffs, which in one tariff case includes twelve states, how could the Customs and Border Protection administer a system in which some importers pay these duties and others do not? On the other hand, those States have obtained a final ruling that the tariffs were illegal, and the States’ injuries are irreparable because they are not based on paying the extra money but on the tariffs’ effects on the States’ economies and the harms to their citizens. The States argue, with some force, that they should be entitled to the benefit of their victory now when there is no way that their continued injury can be remedied. The court granted stays pending expedited appeals, in part because the Government threatened to take the issue to the Supreme Court immediately.
The debate over universal injunctions has centered on suits against federal officials, but the CASA majority’s rationale also has ramifications for federal law challenges to state or local laws in federal court. The rationale for the limitation on the relief that can be accorded to the plaintiff under CASA is not based on a restriction in federal substantive law but on the equitable powers of federal courts as of 1789. Those limits apply regardless of the defendant’s identity. Thus, if an individual challenged a state law or city ordinance banning assault weapons on Second Amendment grounds, a victory in the district court would be limited to the actual plaintiffs, just as the birthright plaintiffs were unable to obtain relief beyond themselves. The APA is inapplicable, and 42 U.S.C. § 1983 does not contain any provision authorizing an expansive reading of a federal court’s equity powers. State defendants (or at least those who were not plaintiffs in CASA) are likely to start raising the state version of the ban on universal injunctions.
The point of these examples—and there are many more that could be included—is that the decision in CASA is almost certainly not the final word in the battle over the permissible scope of relief in cases challenging actions that affect wide swaths of the country when the Supreme Court has not yet had its say. The piecemeal approach to this problem, which would entail follow-up cases in the Supreme Court exploring the options the majority left open, will take many years, with cases reaching the Court in a random manner such that there is a limited chance of achieving a workable solution. Thus, there needs to be some effort to find a comprehensive solution outside the litigation process.
There is one other set of imponderables in attempting to assess the impact of the ruling in CASA. Will the workarounds discussed above enable plaintiffs generally to obtain needed, if not universal, relief in a timely fashion without the Department of Justice making the same kind of objections raised in CASA? And if the Government does object to the relief ordered, will it press the objections to preliminary relief not only to the courts of appeals, but by asking the Supreme Court to routinely intervene when the courts of appeals side with the plaintiffs? And if the Court continues to be asked to overturn preliminary orders upheld by the appeals courts, will it continue to be as willing to step in as it has this year, or will it be more selective when the universal injunction is not at stake? There are no answers to these questions now, but there is one near certainty: President Trump will continue to issue orders that are harmful to large segments of the population, and injured parties will go to court to challenge them. How the courts respond may determine whether the remedies left available by CASA will be acceptable in most if not all cases, both to challengers and to the Government.
In the end, it seems highly unlikely that any combination of the remedies that the Court has left open will lead to a sensible and balanced solution to the universal injunction problem, conceived broadly not just to lessen the burden for the Administration, but to assure that the courts are able to issue broad relief when appropriate. Even if it had the wisdom and will to do so, the Supreme Court will not take enough different cases in the foreseeable future to create a group of decisions that reach such a result. In addition, some of the choices will be political—not in a Republican versus Democrat sense, because these issues beset every administration, but because these issues involve tradeoffs between speedy resolution of challenges and assuring that the Administration has a full opportunity to defend its actions. And making those tradeoffs is neither likely nor appropriate for judicial resolution in a series of litigated cases.
Making tradeoffs is normally a role for the legislature, and I have supported assigning this task to Congress in the past. But on further reflection, the current Congress is both too partisan and too unable to function as a lawmaking body to expect it to come to a sensible compromise. It has been this way for some time, and there is no indication that change will come any time soon. Moreover, writing the kind of detailed and nuanced laws to cover all of these varied situations would be a particularly challenging task for Congress. Congress could assign the task to the Supreme Court through its rulemaking committees, but that process is very slow, and it is doubtful that giving the Court the final say on these tradeoffs could achieve consensus in Congress.
There is one model for dealing with a highly charged matter that worked before and might work here: the Defense Base Closure and Realignment Commission at issue in Dalton v. Specter.17 The concept is to appoint a bipartisan or nonpartisan commission of experts who will gather information on the cases where these injunctions have been sought in order to examine the problem as a whole and come up with recommendations. They would be presented to Congress as a package subject to an up or down vote in both houses and then presented to the President for his signature or veto. Ideally, the recommendations would come to Congress in early 2028 so that a vote would be taken before July, when the members will not know who the next President will be, which may make them more balanced in their approach to the recommendations. Of course, deciding who will choose the members of the commission is another vital element, but a compromise here should be possible.
Will this idea produce a solution that will please everyone? Very doubtful. Will it be more likely to do so than continuous litigation over the issue? Almost certainly. And if Congress does not like this approach, then its leaders need to find an alternative, unless they think that it is a good use of judicial resources to have another decade or more of litigation over what remedies are available in what situations, instead of allowing federal judges to decide the merits of the difficult issues in cases brought in the federal courts.
Alan B. Morrison is an associate dean at The George Washington University Law School where he teaches civil procedure and constitutional law. He filed an amicus curiae brief in this case urging the Court to defer to Congress to solve the universal injunction problem.
Recommended Citation
Alan B. Morrison, Trump v. CASA, Inc.: A Non-Universal Response to the Universal Injunction Problem, Geo. Wash. L. Rev. On the Docket (July 10, 2025), https://www.gwlr.org/non-universal-response-to-the-universal-injunction-problem.
References
[1] No. 24A884, 2025 WL 1773631 (U.S. June 27, 2025).
[2] See id. at *12, 14–15.
[3] Nken v. Holder, 556 U.S. 418, 434 (2009).
[4] This includes whether Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), which the majority cited more than a dozen times, justified the result in CASA. The issue there related to the propriety of issuing a preliminary injunction to restrain the disposition of certain assets when it was agreed that there was no barrier to a final injunction. The injunctions in CASA were preliminary, but the limitations imposed by the Court would apply even if they had been final.
[5] Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).
[6] 90 Fed. Reg. 8449 (2025).
[7] 343 U.S. 579 (1952).
[8] 564 U.S. 338 (2011).
[9] There is also the not inconsiderable chance that there will be dueling class actions with a race to see which class is first certified, which could take the courts back to the pre-CASA era.
[10] 28 U.S.C. §§ 2341–2351.
[11] 42 U.S.C. § 7401 et seq.
[12] 28 U.S.C. § 2112.
[13] Alan B. Morrison, Limiting Nationwide Injunctions, Nat’l L.J. (Mar. 28, 2025), https://www.law.com/nationallawjournal/2025/03/28/limiting-nationwide-injunctions/; Alan Morrison, It’s Time to Enact a 3-Judge Court Law for National Injunctions, Bloomberg L. (Feb. 6, 2023, 4:00 AM), https://news.bloomberglaw.com/us-law-week/its-time-to-enact-a-3-judge-court-law-for-national-injunctions [https://perma.cc/CQ79-WM8X].
[14] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
[15] See supra notes 10–12 and accompanying text.
[16] Learning Res., Inc. v. Trump, No. 25-1248, 2025 WL 1525376 (D.D.C. May 29, 2025), petition for cert. before judgment filed, No. 24-1287 (U.S. June 17, 2025); V.O.S. Selections, Inc. v. United States, 772 F. Supp. 3d 1350 (Ct. Int’l Trade 2025); stayed pending appeal, No. 2025-1812, 2025 WL 1649290 (Fed. Cir. June 10, 2025).
[17] 511 U.S. 462 (1994).
