So-called “universal” injunctions—court orders that bar the government from enforcing a challenged policy against anyone, not just the plaintiffs in a case—have been a feature of litigation against the Trump administration. Or at least they were. In last Friday’s decision in Trump v. CASA, the Supreme Court limited the availability of such injunctions, paring back the universal relief that had been provided by three district courts in challenges to President Donald Trump’s executive order on birthright citizenship. Still, CASA leaves plaintiffs with several avenues to obtain relief that approximates the scope of the erstwhile universal injunction.
The holding in CASA rests on the Supreme Court’s narrow and technical understanding of the relief traditionally available to plaintiffs in equity, as authorized by the Judiciary Act of 1789. “Neither the universal injunction nor any analogous form of relief,” the Court wrote, “was available in the High Court of Chancery in England at the time of the founding.” Thus, the Court reasoned, federal courts cannot enter injunctive relief that is “broader than necessary to provide complete relief to each plaintiff with standing to sue.” The Court’s decision to limit the availability of universal injunctions will make it more difficult for plaintiffs to halt even flagrantly unlawful executive branch actions—a result which Justice Ketanji Brown Jackson’s dissent characterized as “an existential threat to the rule of law.”
CASA’s reasoning, however, explicitly left open other ways to obtain broad relief against unlawful executive actions. Drawing on our prior work on remedies, this article provides an overview of these approaches. First, we explain how litigants might utilize the distinct remedies provided by the Administrative Procedure Act—remedies which courts (albeit not all justices on the current Supreme Court) have generally understood to have universal scope. Second, we lay out how litigants might still be able to justify broad or even universal injunctions as necessary to provide “complete relief” for their injuries.
Remedies Under the Administrative Procedure Act
As others have noted, footnote 10 of the majority’s opinion in CASA made plain that “nothing” in the Court’s decision “resolves the distinct question whether the [APA] authorizes federal courts to vacate federal agency action.” But what is vacatur? And why might it deliver universal relief, CASA notwithstanding?
Courts’ authority to vacate agency action under the APA arises from 5 U.S.C. § 706, which directs courts to “hold unlawful and set aside agency action, findings, and conclusions” that are, among other things, contrary to law or arbitrary and capricious. As the D.C. Circuit has held, “when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” That principle allows a “single plaintiff, so long as he is injured by the rule, [to] obtain ‘programmatic’ relief that affects the rights of parties not before the court.” Although the Supreme Court has not squarely addressed that principle, and although some justices have cast doubt upon it, as detailed below, the Court has affirmed the vacatur of agency decisions numerous times, including recently in DHS v. Regents (2020) and Department of Commerce v. New York (2019). Lower courts in the Biden administration increasingly turned to vacatur in challenges to executive actions, and two district courts post-CASA have already vacated Trump administration policies.
The Court’s reasoning in CASA need not disturb the availability of vacatur. The decision “rest[ed] solely on the statutory authority that federal courts possess under the Judiciary Act of 1789,” and did not interpret the distinct remedial framework provided by the APA. Notably, in footnote 4, the Court declined to address a distinct argument pressed by the government—that “Article III forecloses universal relief.” If that theory had been adopted, it might have supported similar limitations on courts’ authority to vacate agency rules. Although the Court did not resolve the Article III issue this time, the government may well press it in future cases.
The Court may also be inclined to address the question whether the APA authorizes vacatur at all, which has been the subject of dueling separate opinions—and a virtually endless amount of scholarship—over the last several years. But those opinions provide reason to believe that at least five justices, including several members of the CASA majority, would hold that the APA does permit courts to vacate agency rules universally, not just as to the particular parties in the case. To be sure, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Amy Coney Barrett, cast doubt upon vacatur in his concurrence in United States v. Texas (2023). But Justice Samuel Alito, in dissent, criticized Justice Gorsuch’s view as “a sea change in administrative law.” And Justice Brett Kavanaugh has mounted perhaps the most aggressive defense by any justice of universal vacatur in his opinions in CASA, Corner Post v. Board of Governors of the Federal Reserve System (2024) and Griffin v. HM Florida-Orl, LLC (2023). Although Chief Justice John Roberts does not appear to have written on the question, including as a judge on the D.C. Circuit, he characterized the government’s position against vacatur as “fairly radical” in an extended colloquy during oral argument in Texas, and authored both Regents and Department of Commerce. Finally, the tenor of the dissents in CASA, and the questioning at oral argument, suggests that Justices Sonia Sotomayor, Elena Kagan, and Jackson see the need for universal relief in at least some cases.
Because the government is likely to continue to argue that the APA does not authorize vacatur, litigants should be prepared to respond. Justice Kavanaugh’s Corner Post concurrence provides a thorough summary of the government’s argument—and its flaws. The government has asserted that Section 706(2)’s reference to setting aside agency action does not create a distinct remedy, and that instead Section 703, which states that the “form of proceeding for judicial review” is generally “any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus,” limits a reviewing court to traditional equitable remedies. But as Justice Kavanaugh explained, the contemporaneous definition of “set aside”—to “cancel, annul, or revoke”—as well as its antecedents in pre-APA federal (and state) statutes corroborates the view that setting aside a rule meant, in essence, wiping it off the books. By creating a distinct statutory remedy, the APA departs from the traditional equitable principles upon which the Court relied in CASA.
Vacatur may therefore provide litigants with a universal remedy at the end of a case, but what about preliminary relief? The APA answers that question, too, in potentially two ways. First, Section 705 provides that a reviewing court, “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury … [,] may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” There are good arguments that “the scope of preliminary relief under Section 705 aligns with the scope of ultimate relief under Section 706, which is not party-restricted.” Indeed, two district courts have already cited Section 705 in entering universal preliminary relief post-CASA. Even if 705 stays were, for some reason, narrower than vacatur under Section 706, litigants might also have the option of moving for summary judgment on an expedited timeframe to accelerate the availability of vacatur. Second, in his concurrence in CASA Justice Kavanaugh recognized that, in APA cases, “plaintiffs may ask a court to preliminarily ‘set aside’ a new agency rule” under Section 706, citing the stay in West Virginia v. EPA (2016) as an example. However framed, the APA provides options for litigants to seek interim relief that extends to non-parties.
Nevertheless, the APA’s remedies might not provide a perfect substitute for the universal injunction in all cases. Most importantly, the President is not considered an “agency” under the APA, and so the APA’s remedies do not extend to nonstatutory review of presidential action (or other situations where APA review is unavailable). However, there are exceedingly few circumstances where the President himself may take action without any subsequent agency implementation—the birthright citizenship EO itself calls for agencies to create “guidance”—and so this limitation may well matter more in theory than in practice. The APA’s remedies also operate somewhat differently from injunctions. Courts will sometimes—albeit rarely—remand an action to the agency without vacating it, leaving it in effect in the interim. And even when a court vacates an agency’s action, the agency may be able to correct any errors and take the same action again. Even so, in the mine run of challenges to executive action, the APA’s remedies remain a powerful post-CASA tool.
“Complete” Equitable Relief
Apart from the APA, CASA suggests additional ways litigants might be able to obtain relatively broad, or even effectively universal, relief in equity. CASA reiterated the long-established principle that “a court of equity may fashion a remedy that awards complete relief” to the plaintiffs, even as it barred courts from going further. Under the complete-relief principle, while courts may not directly “award … relief to nonparties,” they may fashion injunctions that benefit nonparties “incidentally.” The “archetypal” example the Court provided is a nuisance action. Abating a nuisance generally benefits both the plaintiff and his or her neighbors. As another example, the Court cited gerrymandering cases, in which providing complete relief to the plaintiff requires redrawing district lines for everyone.
Class Actions. One straightforward implication of the complete-relief principle is that cases with more plaintiffs can give rise to broader injunctions. For this reason, class actions have been identified as an alternative means of obtaining universal relief. Federal Rule of Civil Procedure 23 provides that “[o]ne or more members of a class may sue … as representative parties on behalf of all members.” Indeed, in CASA, the Court observed that the founding-era means of obtaining nonparty relief, the “bill of peace,” had “evolved into the modern class action.”
Class actions, however, can be hard to maintain. In particular, “the hurdle of class certification,” as Justice Sotomayor put it in dissent, is “a drawn-out procedural bog.” Rule 23 requires plaintiffs seeking a class-wide injunction to demonstrate that “the class is so numerous that joinder of all members is impracticable,” “there are questions of law or fact common to the class,” “the claims and defenses of the representative parties are typical of the claims or defenses of the class,” and “the representative parties will fairly and adequately protect the interests of the class.” Nevertheless, one post-CASA district court has already certified a class for the purpose of issuing broad injunctive relief.
Litigants may also be able to seek provisional class certification on an emergency basis. In litigation challenging the Trump administration’s invocation of the Alien Enemies Act, the district court provisionally certified a class in just a few hours. And in another AEA case, the Supreme Court “issue[d] temporary injunctive relief to [a] putative class” that the district court had not yet certified. One day earlier, at oral argument in CASA, the Solicitor General admitted that there may be “appropriate cases” where “courts have certified class actions on an emergency basis.” Justice Kavanaugh also alluded to the practice in his CASA concurrence, writing that plaintiffs may “ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide.” The Supreme Court is almost certain to address this issue again, including because the CASA plaintiffs have already moved for class certification and a new temporary restraining order.
Suits by Associations, Organizations, and Coalitions. Even outside of the class action context, certain categories and coalitions of plaintiffs might be able to obtain relatively far-reaching relief. Membership associations and organizations with broad institutional interests frequently challenge executive action. So do ad hoc groups of plaintiffs who band together in particular cases. These dynamics were at play in the recent challenge to the National Institutes of Health’s move to “slash[] and cap[] previously negotiated indirect cost rates on all existing and future grant awards for biomedical research,” which would have “impact[ed] thousands of grants, totaling billions of dollars.” A large coalition of plaintiffs quickly obtained a universal preliminary injunction. Even if that remedy is now off the table, an injunction merely granting relief to the plaintiffs—who included almost half of the states, numerous large universities, and several membership associations of universities and medical institutions—would necessarily sweep very broadly, likely covering a large share of funding recipients.
But here, too, there are complications and uncertainties. To the extent courts require associations suing on behalf of their membership to identify their members by name, it may be impracticable or unwise to do so. Whereas the Association of American Universities can easily produce a membership roster, groups representing and advocating for, say, undocumented immigrants may be unable to identify all their constituents, or be fearful that doing so will put those individuals at risk. This strategy might also lead to increased focus on Article III standing, another obstacle to federal litigation. Last year, in his concurrence in FDA v. Alliance of Hippocratic Medicine (2024), Justice Thomas argued that established precedent recognizing associational standing is inconsistent with Article III. And the majority arguably trimmed the separate doctrine of organizational standing, narrowing the circumstances in which an organization has standing to vindicate its own injuries in federal court. Finally, while only one of a group of plaintiffs needs standing for a court to reach a case’s merits, at the remedial stage courts may require each plaintiff seeking the benefit of an injunction to prove its own standing. Whether associations, organizations, and coalitions can systematically obtain broad relief in challenges to executive action remains to be seen.
Suits by States. Litigants might also take advantage of the complete-relief principle by seeking injunctions that, through their “incidental” effect on nonparties, confer broad or even universal relief. States, which have long been powerful litigants against executive action, might be particularly well positioned to take this approach. States were plaintiffs in both Regents, which halted the rescission of the Deferred Action for Childhood Arrivals program, and Department of Commerce, which blocked the addition of a citizenship question to the 2020 Census. State litigation was also successful in blocking executive action during the Biden administration, as the captions of the cases announcing the arrival of the major questions doctrine—West Virginia v. EPA (2022) and Biden v. Nebraska (2023)—make clear. States, individually and in coalition, are currently litigating numerous challenges to Trump administration actions.
The challenges to the birthright citizenship executive order, two of which were brought by states, may themselves provide a test-run of this approach. The Court in CASA acknowledged the states’ argument that “a universal injunction was necessary to provide the States themselves with complete relief.” Specifically, the states argued that “their harms—financial injuries and the administrative burdens flowing from citizen-dependent benefits programs—cannot be remedied without a blanket ban on the enforcement of the Executive Order” because “[c]hildren often move across state lines or are born outside their parents’ State of residence.” The Court therefore left it to the lower courts on remand to determine what sort of injunction would afford complete relief to the states. But it seems certain that the Court will have more to say on state challenges to executive action soon.
Conclusion
Litigants would be well-advised to take Trump v. CASA seriously—including as a sign of how rigorously the Supreme Court will police the remedies ordered by district courts. As Justice Kavanaugh’s concurrence in CASA noted, the Court will frequently be the nationwide arbiter of the interim legal status of major federal statutes and regulations. But it would be a mistake to write off universal remedies entirely, particularly when there remain multiple paths towards obtaining them.
