Universal Injunctions: A Conversation with Professor Samuel Bray

Episode transcript:

Note: This transcript is generated from a recorded conversation and may contain errors or omissions. It has been edited for clarity but may not fully capture the original intent or context. For accurate interpretation, please refer to the original audio.

JOHN QUINN: This is John Quinn and this is Law, disrupted. We’re talking today with Professor Samuel Bray, who’s the John N. Matthews professor of law at the law school at Notre Dame University. Thanks very much for joining us and we’re gonna talk about a really hot topic, nationwide injunctions.

Who would’ve thought that nationwide injunctions would be on the tip of everyone’s lips and have such a focus of intention? 

It’s kind of a surprising thing, you know, to make the general news. And of course, I’m a lawyer and you know, the thought that the idea that a federal judge in some district could enter an injunction, which would have nationwide effect,  that idea would be controversial, strikes me as just very, very surprising. 

I mean, like, I don’t get it. I would assume that a federal judge in any district has an injunction. He can enter an injunction, which has nationwide consequences. It would seem completely, you know, contrary to, what you might think if a federal judge can only enter an injunction that had effect in the state, in the district in which he or she sits, or in their district or in their circuit.

I just don’t get it. Professor Bray, why is this such a hot topic? 

SAMUEL BRAY: So, I think it’s a hot topic for a lot of reasons. One is just a political one, that for the last decade, almost every major initiative of the president, and that’s true, whether it’s Obama, Trump one, Biden, Trump two, almost every major initiative has been stopped by a national injunction somewhere. 

Now, the question you’re zeroing in on, is an important one and it’s about what makes these kinds of injunctions different and they’re often called nationwide injunctions, and that can make it seem like what’s different is their geographic breadth that they apply all over the nation.

JOHN QUINN: That’s what it suggests. 

SAMUEL BRAY: Yeah, but I agree with you that there’s nothing surprising about that. In fact, there’s nothing wrong with a district court’s injunction having international effect, there’s no reason the injunction has to stop at the boundaries of the U.S. So if you think about it this way, imagine you’ve got two companies and they’re in litigation over a patent.

A is suing B for a patent infringement. And the district court says, yeah,  B’S infringing a patent and B is prohibited from infringing the patent. What’s the scope of that injunction? It’s not geographically limited. You can infringe the patent, just not in my district. But here’s the key limitation, in that kind of case the injunction is going to say B doesn’t get to infringe A’s patent. 

The court is not gonna say, oh, and by the way, these other parties that are not before the court, these other companies, you’re enjoined from infringing their patents too. 

JOHN QUINN: So only the parties before the court are impacted.

SAMUEL BRAY: Exactly. And that’s so, that’s the key thing that makes these injunctions different and controversial, even though they’re called nationwide. It’s a bit of a misnomer. It’s not really about the geographic breadth, it’s about the fact that these control how the defendant acts toward non parties who are not in the case. 

JOHN QUINN: So what would be a better term to use? 

SAMUEL BRAY: I usually call them national injunctions or universal injunctions.

The advantage of universal is it captures the same idea at the state level. If you’ve, you get a challenge, say to a state law and the court goes ahead and says you can’t enforce it against anybody, even non parties. So universal works at that level too. If you want to just talk about the national version, which has more problems including it, it prevents percolation between different circuits, if you want to just zero in on how national Injunction works.

But you can use nationwide injunction two as long as the key distinction that’s recognized is not about geography, but about the court going beyond the parties to the case.

JOHN QUINN: In the context, as you mentioned, of injunctions against government action, government policy, government policy embodied in executive orders or legislation or regulation. I mean, do they arise in any other context or are we basically talking about cases where the the government is a party. 

SAMUEL BRAY: So these are really only happening in cases against the government. The logic of them, if you could get them against the government, you could imagine them also happening in cases between private parties. But that shoe hasn’t dropped yet. So far these are just against the federal government. I mean, it is true that the federal government as a defendant is there in the courtroom, but it still is in tension with the idea of a case for the court to say, while we’ve got you here, let’s go ahead and control how you act toward people who are not in the case that now we do, we do have a way of getting there, but that way we usually get there is through precedent, through appellate precedent, not through district court injunctions. 

JOHN QUINN: Well, I’m sorry, I’m probably being dense here because I’m not following this.

We’ve got a hypothesis there. Government policy or rule embodied in some, manifested in an executive order regulation or something, and the government’s there and the judge decides it’s unconstitutional or for whatever reason, shouldn’t be enforced. It seems like by definition of necessity then we’ve just termed a universal injunction, which is going bar, it’s gonna bind the government and therefore how the government vis-a-vis parties the case. But none of that is surprising or controversial. 

SAMUEL BRAY: So there are a couple of ways to tackle that. One way to think about it is just historically that’s not the way it worked for most of us in history.

Now there’s a debate over exactly when the first universal injunction was, or the first national injunction. I think 1963 is the first one but there are other scholars including professor Mila Sahoni at Stanford who date them earlier in the 20th century. But, what’s not really in dispute is that these were really rare and, not central to our constitutional politics until 2015.

JOHN QUINN: Whenever the date was, when they started, how were these handled before? I mean, if the government was doing something it was unconstitutional. What remedy did the court provide, if not a universal injunction? 

SAMUEL BRAY: So there were a couple different ways this would happen. So one is the court would give an injunction protecting the parties, and then the case would go up on appeal. And once you’ve got a Supreme Court decision, then that was a precedent that was effectively controlling nationwide.

So that’s one option. Another option is you’d get class actions and then everybody in the class would win the suit or lose the suit. And again, it could go up on appeal and then you also had, you also had other postures in which constitutional issues would get presented. Maybe there’d be an enforcement action, a criminal prosecution, and someone would raise a constitutional defense.

You’d have declaratory judgment actions. You’d have me, you’d have other stuff. But the main way besides class actions, that you’d have one case and one decision would ripple out to other cases and other decisions was not through the remedy, it was through the doctrine of precedent. 

JOHN QUINN: Okay. So you had one litigant, a plaintiff, who challenged a government action. The court would rule and say, okay, the government, as to this litigant, you cannot enforce this policy.

SAMUEL BRAY: And then that would go up on appeal and if it’s a firm become presidential. And sometimes the administration would just fold. So you would lose a case and you’d look at the district court opinion and you’d think, this is really persuasive. This is gonna persuade other courts.

Maybe we’ll fight it one more time. And then they fight it one more time, and then they have another loss. And then they say, okay, so we don’t think we’re gonna be able to win on this. So they just fold, withdraw the order or whatever it is. So, that happens too. There’s a little bit of a question of intensity of preferences. 

So back in the New Deal, you’d have a lot of different, statutes got challenged and sometimes the government would give up very quickly, and then sometimes there’d be a statute that would be really important to  FDR administration and then the government would keep trying until it lost in the Supreme Court.

JOHN QUINN: What do you think are the pros and cons on either side of this,  universal injunction remedy as ways of addressing this issue, which you’ve referenced? 

SAMUEL BRAY: So there are both pros and cons, and that’s what makes this a complicated question. There are ways in which it just feels intuitive and so let me start with the pros for universal injunctions.

I’m a critic of them, but I think there’s a, there are, good faith and persuasive arguments on both sides. So, on the pro side, one of the arguments is just a kind of a quality norm that everybody should be treated the same. And if the government can’t apply this rule or statute to this person, why couldn’t the government get to apply it to that person?

So there’s a fundamental sense of equality. We can talk about that under the Equal Protection Clause, or we can talk about it just as an equality norm that runs through a lot of our laws. So that’s one argument in favor is as soon as you’ve got a universal injunction, you get equal treatment by the government to everyone.

Another argument in favor that I think has a lot of weight is that the universal injunction, even if it is kind of aggressive and even if it’s only really become dominant in the last 10 years, is a response to changes in the executive branch. So, presidents have reached further, overreached further, tried to do more through executive orders,  instead of going through rulemaking, instead of working with Congress.

So President Obama famously said that he had a pen and a phone, and then, the trend has extended from there. And in the current administration, you see a vast increase in executive orders and a vast increase in executive orders that are flagrantly unconstitutional. So, when you have that happening, when you have more presidents using executive orders to try to make fundamental shifts in policy, and those orders are directly unconstitutional, like some of the Trump administration ones, then it’s understandable that you would have judges to return, so to speak. 

So that’s another argument for universal injunctions. Another argument that has some persuasive force too is that it can be difficult if you get a kind of patchwork of different rules applying in different places, and that can be messy. And this, for example, is one of the strong arguments in the birthright citizenship cases that it makes no sense to have different kinds of regimes of citizenship in different places, and a universal injunction gets you to the right answer very quickly. So those are some of the main pro arguments, and they do have a lot of force. 

JOHN QUINN: But you’ve said that on this issue, you come down on the other side, you’re more of a critic.

SAMUEL BRAY: That’s right. There are several reasons for this.

There’s an assumption in a lot of the arguments for universal injunctions that the court, the universal injunction is right, but always the case in birthright citizenship cases, it’s right because birthright citizenship has been settled in our law, both by the 14th Amendment and by executive and legislative and judicial action for a long time.

But in a lot of these cases, courts will give universal injunctions to the first court that gets the case, and then it’ll be reversed later on. There’s no guarantee that the speed with which the court is acting means the reliability of the court’s judgment. And in fact, universal injunctions undermine the good decision making of the courts because the courts do their best work when they work slowly.

If you think about the chef who takes a long time with the ingredients versus  McDonald’s fast food line. The Supreme Court, it doesn’t do as good work as the McDonald’s fast food line. It needs to take its time. In the old carpentry adage, you measure twice and cut once. And one of the ways the Supreme Court does that is not hearing decisions, not taking cases until there’s a circuit split, in the lower courts.

And what we’ve seen over the last 10 years develop is a pattern of a chain reaction where you get an executive action. And then immediately gets challenged and it doesn’t get challenged in a random jurisdiction against Obama and Biden. All of the challenges were in Texas and often in single judge divisions and then, against Trump in both administrations, they’re brought in other places.

So you get aggressive forum shopping and you get very quick universal injunction, and then you get emergency appeals up to the Supreme Court. And usually what’s happening in these cases is you haven’t had a trial, you haven’t had summary judgment briefing, you haven’t had very much discovery.

And the preliminary injunction posture in the court is effectively asking how we think we’re going to decide it once we actually have the evidence? And that’s just not a good foundation for the judiciary to do its best work. So that’s one reason. Another reason is that an in runs around lots of different doctrines and rules.

So some of this is class action related. It’s like getting a class action remedy without actually meeting the requirements for a class. Similarly, it’s an in run around a preclusion doctrine. I mean, if people thought injunctions were gonna be technical deep dive then, hold on, because, I’ll say that it’s an in run around the restriction on offensive non-mutual collateral estoppel, against the federal government.

In the early 1980s, a case called United States versus Mendoza says that when somebody wins a case against the government, against the federal government, somebody else doesn’t get to come in and say, well, this issue was already decided in that case. So, that applies to me too, and that’s the logic of the universal injunction.

And so the Supreme Court’s already said, you don’t get to do that in the preclusion context. So those are some reasons, but then there’s what I consider,  the really important stuff and to me this is about democracy and about the role of the courts. 

Over the last 10 years, as I mentioned, there’s been this shift where almost everything that’s done by the administration, by the executive branch gets stopped. That’s good stuff that gets done and bad stuff. That’s stuff by democratic presidents and that’s stuff by Republican presidents. And the model we have right now,  with the aggressive shopping with the polarization of the judiciary and with universal injunctions with lots of emergency docket or shadow docket stuff by the Supreme Court. That’s a broken model. 

And what it means is it’s very hard for the democratically elected branches to act. Now, again, I’m not saying that everything they’re gonna do is good.  H.L.  Mencken said that democracy is when the people get what they want and they get it good and hard.

And that’s the way democracy works. If the courts stop everything, because it just takes one judge without a trial, preliminary injunction, just prediction of the merits, and you get a universal injunction everywhere and it’s very hard for the government to function and closely related to this is the question of what the proper role of the judiciary is.

And there’s a lot of debate about this, but I think the proper role, the most legitimate thing for the judiciary to do is to decide cases. And in those cases it has to announce larger legal principles, but its legitimacy comes from its decision of the case. And, so accumulating a series of cases is the way the legal system is designed to work.

And if instead you get one case and then you get one injunction to rule ’em all, then that’s not the way it’s supposed to work. And that’s not where courts are most legitimate. Even when I agree with the results they’re coming up with. 

JOHN QUINN: That’s really interesting. So, it sounds like, in a nutshell, if I were to summarize your criticism, it really relates to the process by which, what’s the best process, by which the judiciary can decide what the law is and we’re better off not having one judge make a decision that everybody’s then got a scramble to deal with after this whole form shopping, a process that we’ve now become familiar with. 

We’re better off letting some number of cases develop and percolate, percolate through the system and come up through circuit splits like any other issue. Exactly. Right. Well that’s fascinating, I guess it’s going to take Supreme Court to decide this issue about universal injunctions. 

And isn’t that now exactly before the court on this birthright citizenship case. And do you think you can reach it? 

SAMUEL BRAY: Yes. I think it will probably take the Supreme Court. I should note there have been various hearings and bills in congress. And, the house has even passed a bill to address universal injunctions.

The House bill is not a very good bill. It’s got some serious loopholes and lets states get universal injunctions whenever they want. But there is congressional action. But I think what’s likely to happen is the Supreme Court is gonna act. The Supreme Court has wanted to do something about this for a while and several times it has granted cert in cases that present several questions.

And one of the questions is the universal injunction question. Each time the Supreme Court has done that, it has not gotten to the universal injunction question because it has either in its decision about standing or its decision about merit. The merits have ruled in favor of the government. And to get to the question of the scope of the injunction, the government has to lose on standing and just disability has to lose on the merits.

Then you get to the scope of the remedy and then the court can cut it back. Now, what’s interesting in the birthright citizenship cases is that the Supreme Court has this on an emergency order or an emergency appeal rather from the Trump administration asking it to address only the scope of the injunctions.

So the Trump administration did not appeal anything about the merits. And one reason for that is that the administration wanted to isolate this question of the scope of the remedy. Just President Biden’s administration opposed the universal injunction and before that Trump and before that Obama.

So, it’s a strategic decision, but it also is an admission of weakness because the administration is definitely going to lose on birthright citizenship. There’s no doubt about that. I would be surprised if any federal court accepts its view of birthright citizenship, so it’s going to lose on the merits.

So it’s trying to get something, on scope of the remedy, despite that loss. 

JOHN QUINN: So, the court is gonna, it sounds like the court is gonna have to address the universal injunction in this case. They’re gonna have to address it. 

SAMUEL BRAY: It could, the court could dodge it, but I don’t think the court will, in fact, when the court asks for oral argument.

That was a pretty clear signal that it wanted to do something about this. And then at the argument itself, it was clear that most of the justices thought there were serious problems with universal injunctions. Now, what their grappling with is how to state that as a rule. And I think they’ve had some hesitation about this.

It’s kind of hard because if you do, you wanna make sure injunctions are available, to be broad when they need to be broad, to protect the parties and,  when you’ve got class actions and maybe when you’re trying to get a class and you’ve got what this court has recently called a punitive class and the class hasn’t been certified yet, but you need to protect the court’s ability to grant the class certification.

So the court is trying to rein in universal injunctions while also making sure its rule is not so categorical that it eliminates these other things that are, that is working well and necessary. So that’s the struggle. And that was on display, an oral argument at the Supreme Court.

Most of the justices had some serious reservations about universal injunctions, but they’re trying to formulate the rule. 

JOHN QUINN: So if you were to bet on it, it sounds like you would bet in favor of the court doing something to curb universal injunctions in this case. 

SAMUEL BRAY: I think the court is going to curb the district court judge’s enthusiasm for universal injunctions.

I expect that to happen. I expect the court will not base this on the constitution. Because some of the justice will want to go there, but not others. And the court’s gonna try not to answer the question about challenges under the Administrative Procedure Act and whether that has universal effect or not.

So the court’s gonna avoid answering that ’cause that would fragment the majority and the court’s probably not gonna base it on the Constitution. But the court is going to do some kind of sharp pushback on universal injunctions and try to shift the equilibrium on what’s happening in the lower courts toward remedies for the parties to the case, unless you have a class action and then a remedy for the class that’s in the case. 

JOHN QUINN: Well, what would be the legal grounds or doctrine if it’s not constitutional if it’s not the APA? What ground do you think they’ll base, do they have to base their decision on? 

SAMUEL BRAY: So I think the main ground will be that the federal courts have jurisdiction to give equitable remedies under the Judiciary Act of 1789.

And the court has a string of cases where it says that, that means the federal courts have traditional equitable powers and they’re subject to traditional equitable limits and universal injunctions. Not something that traditionally happened in equity. And so I think there’s a fairly open and shut argument statute gives you this power to figure out this power.

We look at the tradition of equity. There weren’t universal injunctions in the tradition of equity. No universal injunctions for federal courts today. Now, there are some steps in there that have various debatable points, but that’s what I think is gonna be the gist of the argument.

JOHN QUINN: So if that’s what the court does, that’ll mean the universal injunction will be struck down. But in that case, is that brought by some public interest group? Is there a particular individual?  

SAMUEL BRAY: Well, in the birthright citizenship cases, there are individual plaintiffs, there are state plaintiffs, and there are organizational or associational plaintiffs, immigrants, rights advocacy groups.

So, you get all three. And I also think that one of the things that’s a little complicated is the states. Bringing case, bringing the challenges, the executive order, say relief that’s actually gonna work. It can’t just apply to the people in this state and the people they interact with, but it has to be national, and I would not be surprised if the court wants to avoid answering that question too much in this case.

And so maybe the court would announce a rule against universal injunctions. Mark out some qualifications to that rule, say class actions are fine, all Writs Act type injunctions to preserve the court’s jurisdiction. Even if it hasn’t certified a class, that’s fine. Congress has some power to decide what a case is.

That’s fine and a broad injunction when needed to give complete relief to the parties, that’s fine. And in this case, because it’s so complicated, what complete relief means, we’re gonna send it back to the district courts and remand, and for them to tailor the injunctions more narrowly, not broader than is needed for complete relief.

That’ll take some time while that’s happening, there will be class actions statewide or circuit wide, or nationwide class actions that are filed that will cover everybody in the country. And I suspect the executive order will never go into effect. 

JOHN QUINN: So I mean, if that happens, well first off the state, the fact they’ve got states that are claimants, that’s really tricky because you can’t just say these states that happen to be parties as to them, the injunctions good, we’ll forget the other 50, you know, the remaining states that seems obviously problematic. If it’s sent back, there will be these class actions and then aren’t we right back to where we started? 

SAMUEL BRAY: So I don’t think we’re right back where we started. There is a line of argument to that effect. And Justice Alito said something very much like that in the oral argument.

But I think it will be different than having universal injunctions and I think so for several reasons. So one is, a class action is a proper case because everybody wins or loses together. Part of the problem right now with universal injunction is you have this asymmetry. If the government wins, well that only applies to this one person. If the person suing wins, well then there’s a universal injunction and that controls the government everywhere.

So you get rid of that asymmetry and you get the proper case. So that’s one thing. Second thing, part of the class action analysis is to figure out whether the named plaintiffs are the best and most proper plaintiffs to bring the case. Universal injunctions have been encouraged, relatively marginal plaintiffs who don’t really have strong standing claims to bring cases.

So if you think about  MIFEPristone abortion pill case, from Texas. During the Biden administration, it was emergency room doctors who sued to stop various kinds of regulatory actions related to the pill. They had very weak standing claims. So weak that when it got to the Supreme Court, the Supreme Court, nine to nothing, held that they had no standing.

But that’s the kind of claim that gets encouraged by the universal injunction. So we better lead plaintiffs, if I can put it that way. And the last advantage of universal injunctions, I mean of class actions over universal injunctions is they don’t have to be nationwide. You could have a class action that’s only in a state or only in a circuit.

And then that allows percolation, here’s a class action for everybody in the ninth circuit, who’s affected by a rule or here’s a class action for everybody in the fourth circuit. And that still allows different circuits to come to different positions. In fact, in one of the three cases that’s at the Supreme Court on the birthright citizenship, Universal Injunction question, the case out of Washington, Washington versus Trump, there were individual plaintiffs and they sued and they asked for a class action for everybody who was affected by the birthright citizenship executive order in the state of Washington.

And what happened was the district court combined their case with a case brought by some states and gave a universal injunction, and then that short circuited the class action analysis.

So you didn’t even get to the class action analysis. Pulling out the universal injunction court will get to the universal, class action analysis. So I expect that to happen and it’ll be a healthier place for our judiciary and following the actual rules we have, rather than this kind of end run through the universal injunction.

JOHN QUINN: Fascinating subject, which turns out to be far more complex than meets the eye, at first blush. So, thank you very much Professor Bray for speaking with us. It’s been a very interesting discussion. 

SAMUEL BRAY: My pleasure, John. It’s an honor to be on the podcast. 

JOHN QUINN: This is John Quinn. This is Law, disrupted.

We’ve been speaking with Professor Samuel Bray of the Notre Dame University Law School about, I’m not gonna say anymore, nationwide injunctions, universal Injunctions.

Thank you for listening to Law, disrupted with me, John Quinn. If you enjoyed the show, please subscribe and leave a rating and review on your chosen podcast app to stay up to date with the latest episodes. You can sign up for email alerts at our website Law-disrupted fm or follow me on X at JB Q Law or at Quinn Emanuel.

Thank you for tuning in.

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Published: Nov 13 2025