When a single federal judge can freeze a president’s policy nationwide, it raises big questions about checks and balances and democratic accountability. That’s one reason nationwide injunctions have become central to some of today’s most consequential legal battles—and why the Supreme Court’s recent decision in Trump v. CASA matters.

In a recent live podcast recording, Stanford Legal host Diego Zambrano sat down with Professor Mila Sohoni, one of the country’s leading scholars on federal courts and administrative law, for a conversation that moved from President Trump’s day-one birthright citizenship order to the Court’s ruling in CASA, including how lower courts are now navigating the decision’s new, but murky, constraints on nationwide injunctions.

Sohoni breaks down the protection these injunctions can offer when sweeping executive actions threaten millions, the risks of empowering individual judges to halt national policy, and the incentives for strategic forum shopping in a polarized era. She also explains how CASA reins in—but doesn’t eliminate—the nationwide injunction, leaving room for broad relief through class actions, universal vacatur, and “complete relief” findings. 

The following is a shortened and edited version of the full podcast transcript, which can be found here.

Diego Zambrano: Since taking office, President Trump has issued over 200 executive orders on a wide range of issues. One particularly controversial order, issued on day one of the new administration, attempts to significantly narrow the meaning of birthright citizenship. After multiple lower courts immediately blocked the birthright citizenship order from being implemented, the Trump administration swiftly appealed to the Supreme Court. And in Trump v. CASA, the Court left the issue of birthright citizenship for another day. Instead, the Supreme Court weighed in on a critical legal question: Can federal courts issue a universal injunction that constrains the government from acting against individuals or entities beyond those who brought the lawsuit? Ultimately, in a 6-3 decision, the court reined in the power of lower courts to issue universal injunctions but did not completely abolish it. What’s so controversial about nationwide injunctions?  

Mila Sohoni: Universal injunctions have become controversial mainly because they let a single federal district judge anywhere in the country completely stop a president’s policy for everyone, not just for the people who sued. So this creates an extraordinary dynamic. Imagine a district court judge in Amarillo, Texas, blocking a nationwide vaccine mandate policy, or imagine a judge in San Francisco halting a Trump immigration order across all 50 states and for everyone.

What critics say is that this turns federal district court judges into effective super-legislators who can veto executive branch action based on their own political views, especially because lawyers can shop around for friendly judges and friendly districts. The controversy about these orders has greatly intensified in recent years, but the remedy itself isn’t new. In my scholarship, I’ve documented federal courts issuing broad injunctions that resemble these in principle since at least 1913. What has changed is the sheer volume of them. As presidential administrations, faced with gridlocked Congresses, have been implementing more and more policy measures through executive branch fiat, nationwide injunctions have increased in number and they have increased in consequence, and they therefore have increased in controversy. During the Obama and the Biden years, Republican attorneys general figured out that they could file in friendly Texas courts and shut down those presidents’ policies nationwide.

And then during Trump’s first term, and today, Democratic attorneys general perfected the same strategy in California and in district courts in the First Circuit. So we went from perhaps a small number per year to dozens of such injunctions over the course of a single presidential term.

When any federal judge can block an executive action as to everyone, it shifts power to the judiciary—that has to be acknowledged. Is that a feature or a bug? The birthright citizenship case that you mentioned perfectly illustrates the stakes. Without universal injunctions, hundreds of thousands of newborns were at risk of losing citizenship while their parents tried to find lawyers and file individual lawsuits. With universal injunctions, several district court judges were able to stop the president from implementing what he regarded as a valid policy. So, this is a fundamental question about who is running the country and how quickly and effectively courts can check executive power.

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Diego Zambrano: What do you think are the best arguments for nationwide injunctions, or at least for the courts having the power to issue nationwide injunctions?

Mila Sohoni: The best case for these injunctions rests on three practical imperatives.

First of all, district courts have to be able to respond to emergency situations when administrations suddenly impose policies that drastically affect millions of people’s rights. The Supreme Court cannot handle every crisis immediately. So when an executive branch starts deporting people to a prison in El Salvador without due process, or when it begins requiring that employees be vaccinated against COVID, lower courts have to be the frontline responders to those measures.

The second reason is that many victims of illegal government action cannot realistically sue to protect themselves. Many people have no meaningful opportunity to join in a lawsuit for themselves, either because they’re afraid of reprisal or because they simply lack access to justice. An undocumented immigrant who’s facing deportation is going to be very worried about suing the Trump administration or the Biden administration in their own name.

Third, courts need to have the remedial arsenal to address government power, and that remedial arsenal has to be commensurate with the way that government actually works. Once somebody is deported, or once a census is conducted with an illegal question, or once millions of loans are forgiven, courts cannot easily undo those kinds of actions down the road. In other cases, the only workable remedy is going to be a universal remedy. For example, having an EPA emissions standard that applies to some factories and not their identical competitors doesn’t really make sense.  

Diego Zambrano: Now I want to push on the counter argument. There’s long been this dispute about whether courts are supposed to say what the law is or whether they’re just supposed to resolve the dispute in front of them.

Mila Sohoni: I want to acknowledge that there are serious costs. These injunctions do let litigants avoid the rigors of class action certification. They do depress, to a certain extent, dialogue. They do result in decisions issuing on thinner records than we would have after a full trial. But the thing is that if they were ditched entirely, that would have really severe costs too.

If a president is juicing regulatory authority out of a statute that doesn’t exist or juicing legal authority out of a statute that is in violation of the Constitution, what the court is doing is reimposing democratic checks on the president by blocking that action from going into effect. That is what democracy is: reinforcing what the meaning of the Constitution is, applying statutory constraints. That is the democratic argument there—that these injunctions are actually democracy-furthering. If you didn’t have them, you would have much more of a regulatory patchwork problem. On top of that, you would have many lawsuits, or many more lawsuits, than you have currently.

Diego Zambrano: I want to move on to the Supreme Court case that brought this issue to the table, Trump v. CASA. This had to do with the birthright citizenship executive order. Then this decision that came out in June didn’t focus on the issue of birthright citizenship. Instead, it focused on this apparently unrelated issue of a nationwide injunction.

Mila Sohoni: Yes, this was an executive order on the first day of Trump’s second term, and this executive order purported to end birthright citizenship for children whose parents lack either citizenship or green card holder status. This order was almost immediately enjoined by three different district court judges, not all nominated by Democratic presidents. The Trump administration then filed these emergency applications with the Supreme Court and the Supreme Court then issued an order saying, “we want to hear oral argument, we want more briefing on this.” And then it addressed the only question that the government raised in its stay application, and that was the question of whether the injunction should be narrowed so that they would protect only the plaintiffs rather than all those affected by this executive order.

So, the court was not asked to, and it ultimately did not say a word about the illegality or legality of the executive order itself. Instead, when it issued its decision in June, it only addressed the issue of the scope of the injunctions, and it stayed them to the extent that they provided relief beyond the plaintiffs in the case.

The Court held in Trump v. CASA, that federal courts generally lack the authority under the Judiciary Act of 1789, to issue injunctions that protect nonparties, but they left a significant qualification to that. Courts can still issue broad relief, when it’s necessary, to provide complete relief to the actual plaintiffs. And then the Court sent the cases back down to the lower courts to figure out whether the states and the organizations might still need universal relief for their own injuries. For instance, it’s possible that the states wouldn’t be able to get complete relief without a universal injunction because of the possibility of interstate movement of people that would create administrative chaos. And so, if that were the case, if the lower courts found that, then the states might still be entitled to as sweeping of an injunction as had previously been issued.  

Diego Zambrano: And that’s because this power to issue an injunction like this has to be grounded in the 1789 Judiciary Act. Then the question is how do we interpret that particular statute?  

Mila Sohoni: Yes. I have written a lot about this history. In my view, the Court performed a very selective and truncated historical analysis. It claimed to be interpreting the Judiciary Act through a historical lens, but its historical analysis was actually surprisingly very thin.

The majority barely examined American equity practice at the founding. There’s essentially no citation to any founding-era American law, and the treatise that it cites doesn’t even speak to this question. Instead, what the Court does is it looks at history after the founding and picks out particular sources from that history.

The court cites cases from the 1890s. It cites one as late as 1927 to argue against universal injunctions, but it conspicuously ignores other cases from the 20th century where the Supreme Court itself issued or affirmed exactly these kinds of broad injunctions. In my scholarship I’ve shown how federal courts issued injunctions that protected nonplaintiffs from at least 1913 onwards, including the Supreme Court blocking a new federal statute that affected newspapers for everyone, not just against the plaintiffs. Other famous examples that you might remember from law school include Pierce v. Society of Sisters or or Barnett v. West Virginia, but the Court just simply didn’t engage with that history, treating it as being beyond the window of relevant time.  

Diego Zambrano: A lot of this really comes down to disputes about history. Both sides disagree about which remedies were available at the founding. That’s because in Grupo Mexicano, the Supreme Court said federal courts only have the kinds of equitable remedies they had in the founding era—or at least there has to be an analogous remedy available in 1789. So the debate becomes: what remedies actually existed in 1789?

The Court reads that history one way. You and others read it another way. There’s a pretty heated disagreement over how to understand that history. And then there’s the policy angle. The Court said it wasn’t basing its ruling on policy considerations. But in your view, did the Court actually resolve any policy problems by saying, essentially, that courts don’t have this power?

Mila Sohoni: Not really. What the Court did was not eliminate policy problems, but reshuffle them into different boxes. Take forum shopping. We’ve talked throughout this conversation about how central that problem is in cases involving universal injunctions. And remember what CASA held: courts can still issue a broad injunction if it’s necessary to give complete relief to the plaintiffs. The Court also said it wasn’t touching federal courts’ power to issue universal vacatur under the Administrative Procedure Act. And it didn’t question courts’ power to certify nationwide classes, which lead to decrees that operate almost identically to universal injunctions.

So if you’re a litigator after CASA, your incentives don’t really change. Plaintiffs are still going to forum shop—they’re just shopping for different remedies. They’ll look for judges willing to find that complete relief requires nationwide scope, or judges who will quickly certify a nationwide class, or who interpret the APA to permit universal vacatur. It’s the same dynamic, just routed through slightly different labels and pathways.

And we could walk through the other policy concerns that have been raised—conflicting injunctions, rushed litigation, lack of percolation. All of those can be recreated even after CASA.

On top of that, CASA actually creates new problems. Courts now have to engage in this “complete relief” inquiry and decide which remedies are indivisible, but they don’t have clear guidance on how to do that. The Court didn’t explain clearly what makes relief complete or when less-than-universal relief is infeasible. That lack of clarity is going to create its own set of issues going forward.

Zambrano: It sounds like you’re saying this ruling may have less impact than people expect because plaintiffs still have plenty of ways to seek broad, nationwide-type relief. They can pursue class actions that cover hundreds of thousands of people. States can sue and potentially obtain statewide relief. And litigants can argue that a broad injunction—something very close to a national injunction—is necessary to provide complete relief. Do you think these avenues will end up filling most of the space that national injunctions used to occupy?

Mila Sohoni: That is something that I’m tracking very closely. We have to keep watching this because it’s only been a few months since CASA was actually decided.

Diego Zambrano: Why do you think the Court chose to decide this case now? This issue has been percolating for a decade. Why address it this summer?

Mila Sohoni: This issue has been percolating for a long time. As recently as 2017, in Trump v. IRAP, one of the first challenges to the Trump administration’s travel ban, the Supreme Court itself allowed injunctions that protected not only the plaintiffs but also others similarly situated—even though that wasn’t necessary to give complete relief. So as late as 2017, the Court was permitting non-plaintiff protective relief to remain in place.

It’s also true that in recent years the Court has had several opportunities to address universal injunctions, but many of those cases were tied to challenges to administrative rules. That meant the universal-injunction question came bundled with debates about what the Administrative Procedure Act allows. I suspect that complicated things; the justices may not be as aligned on the APA question as they seemed to be on the universal-injunction question standing alone.

Ultimately, the Court chose to resolve the issue in this case. And I’m glad it did, because this case starkly illustrated the potential consequences of eliminating broad remedies. It involved birthright citizenship—an issue of fundamental importance. The executive branch’s action here was far outside prior precedent and practice. The stakes were clear, and I imagine that underscored for the Court how significant its decision would be. So I’m glad the Court confronted the question in this context, rather than in a case about some very technical rule governing financial institutions or smokestacks.

Diego Zambrano: Can you talk about the relationship between the Supreme Court and the lower courts in this context?

Mila Sohoni: On this question in particular, what I’m seeing is that lower courts are genuinely trying to apply CASA. When they issue broad remedies through the pathways CASA left open—certifying nationwide classes, or finding that complete relief requires universal scope—they often face criticism from the administration that they’re circumventing, evading, or flouting CASA. But in many of these cases, the lower courts are operating squarely within the lines CASA drew.

That’s a problematic dynamic. It’s both essential and completely routine for lower courts to apply a difficult, open-textured Supreme Court opinion to varied factual and legal contexts. If they’re accused of insubordination every time they reach a remedy the executive dislikes, they may hesitate to issue those remedies—even when they’re justified.

So an ironic aspect of CASA is that, although it was meant to reduce friction between the courts and the executive branch, it may actually increase it. And it may create new tensions within the judiciary itself, between the lower courts and the Supreme Court. That’s something I’m concerned about.

Mila Sohoni, Professor of Law and the John A. Wilson Distinguished Faculty Scholar, focuses her scholarship on civil procedure, administrative law, federal courts, and legislation. She is a leading voice in the ongoing debate over the constitutionality of the nationwide injunction and the availability of universal remedies under the Administrative Procedure Act. Her articles exploring the history and legal underpinnings of these remedies have appeared in the Harvard Law Review, the Yale Law Journal, and elsewhere. Her work has been cited by the Supreme Court and in various separate opinions penned by Justice Sonia Sotomayor, Justice Brett Kavanaugh, and Justice Ketanji Brown Jackson.