Tag Archive for: Nationwide Injunctions

Cyrus Mehta

Supreme Court Decision Limits Nationwide Injunctions Giving More Power to Trump to Violate the Constitution

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On June 27, 2025, in a case implicating President Trump’s Executive Order (EO) on birthright citizenship, the U.S. Supreme Court issued a decision limiting federal courts’ ability to issue nationwide injunctions blocking EOs and broad national policies. It explained that in such cases, courts should normally only block federal policies for the individuals or organizations that bring a lawsuit, unless a statute or class action process allows broader relief. This ruling makes it less likely that a single lawsuit will be able to stop a federal policy from taking effect across the entire country.

The Supreme Court’s order incorporates a change to the effective date of the EO, which was agreed to by the government. The Court stated that the EO does not apply to children born since January 20, 2025, and for 30 additional days after the order. Under the decision, all children born in the United States before July 28, 2025, regardless of their parents’ immigration status, will be recognized as U.S. citizens by the executive branch of the federal government. 

Justice Barrett, who wrote for the majority acknowledged, arguments that “the universal injunction ‘give[s] the Judiciary a powerful tool to check the Executive Branch.’ But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them,” she emphasized. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” The justices held along ideological lines that the Judiciary Act of 1798 does not authorize federal district court judges to issue sweeping injunctions that stop the government from enforcing a policy throughout the country. 

Justice Sonia Sotomayor dissented, in an opinion that she read from the bench, which signaled her strong disagreement with the majority’s ruling. She stated that the majority had ruled that, “absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

The decision did not address the merits or constitutionality of the EO, and we have discussed previously that the EO is probably unconstitutional and we hope that the Supreme Court will agree  when it rules on the merits. There will be continuing and evolving uncertainties, including legal challenges to the birthright citizenship order in the federal courts. For example, filed within hours of the decision, a lawsuit in New Hampshire seeks to designate a nationwide class of children needing protection from the EO. The nonprofit plaintiff organization, Casa Inc., also moved swiftly to modify their challenges into a class action. Indeed, the majority order that deemed nationwide injunctions a “shortcut to relief that benefits parties and nonparties alike” did not preclude federal courts from providing relief through class actions.    Meanwhile, at a press conference on June 27, 2025, President Trump announced that the administration plans to take additional actions to end birthright citizenship. These efforts will likely take the form of new agency rules, policies, and guidance aimed at implementing the EO.

If there is any issue that cries out in favor of the universal injunction it is for a court to protect a newborn from a blatantly unconstitutional executive order which the Supreme Court majority sadly failed to do. First it was outrageous that the Supreme Court used this case to demolish the notion of the universal injunction involving such a blatantly unconstitutional executive order. Steve Vladeck  states that class actions are more difficult to bring and are also subject to interlocutory appeals whether the court appropriately certified the class. Even though Justice Barrett held that prohibiting enforcement of the order against the child of a pregnant plaintiff would give that plaintiff complete relief, and extending the injunction to all similarly situated individuals will not render the relief more complete, this limitation on complete relief should not apply to a state plaintiff.  And if a state asks for complete relief and gets it from a district court then this too will be appealed to the Supreme Court, and there is a risk that a state would only be given relief for those who reside in the state. This could result in disastrous disparities in a birthright citizen case, as a child who is born in New Jersey and recognized as a citizen but who later moves to Texas would not be recognized as a citizen in that state.

The cumbersome class action is no substitute for a court to quickly block a blatantly unconstitutional executive order under universal jurisdiction. What if there was an EO prohibiting members of a religion from openly worshiping? A court should be able to quickly block it under universal jurisdiction.

What if Trump issues an EO demanding that all his opponents be shipped to a prison in El Salvador? If one such well-heeled opponent goes to court and gets an order it will only benefit her, and each opponent will have to obtain a similar order as Trump can otherwise keep on enforcing his unconstitutional actions.

Parents in H-1B/H-4 nonimmigrant visa status of a newborn in states that did not challenge the birthright citizenship EO will have to individually sue or join class actions to ensure that their child is recognized as a US citizen, or they are welcome to come to a state like New York or Massachusetts to give birth to their child. But how cruel to force the mother to travel when she is already in labor!

The Supreme Court’s order allows Trump to deny people rights that are embedded in the Constitution so long as they have not found a lawyer or asked a court to protect their rights, and even when they do, they may not succeed in that court. It aligns Trump’s America to an autocratic state, or worse, to a fascist regime.

 We also fear that ICE could start deporting plaintiffs and even newborns if they are here unlawfully before they get a favorable court order. The executive order applies not only to children of two undocumented parents, but also to the U.S. born children of parents who hold a valid nonimmigrant status, such as H-1B and H-4. How will a child as soon as it is born acquire H-4 status? One needs to be admitted into the US in H-4 status or change from another nonimmigrant status into H-4 status. Perhaps, the Trump administration may need to issue a regulation recognizing H-4 status of the child at the time of its birth.    As we noted in a prior blog, the best chance for Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs to obtain permanent residence without waiting for several decades could be sponsorship by a U.S.-born adult child. Parents of children born after the effective date of the executive order may no longer have this opportunity. The executive order will cruelly create a permanent underclass of noncitizens if they are unable to challenge it individually or in a class action. The child in H-4 status would have to leave the US when it turns 21 unless it finds a way to change to another nonimmigrant status or obtain permanent residence independently such as through marriage with a U.S. citizen. 

People have rightly observed that the nationwide injunction has also benefitted Republican controlled states that are against pro-immigration policies such as the successful thwarting of DACA by Judge Hanen in a federal district court in  Texas who held that DACA was unlawful and issued a nationwide injunction.  On the other hand, even though Judge Hanen ruled DACA to be unlawful, his ruling has been appealed, and DACA still benefits its recipients in allowing them to extend their work permits since June 2012. Even if the Supreme Court ultimately agrees with Judge Hanen, there is a possibility that Congress can step in and provide a path for citizenship to DACA recipients.  If a policy is challenged in a legal action, the government that issued it can still defend it and Congress can also step in.  By contrast, without the benefit of a nationwide injunction, a blatantly unconstitutional executive order can continue to stand and adversely impact people, even newborn children. 

 

Cyrus Mehta

Guilford College v. Wolf: Reflecting on the Nationwide Injunction in Immigration Cases

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In a stunning victory for F, J, and M nonimmigrant students battling unlawful presence policy, a federal district court in North Carolina has granted a permanent injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The Trump Administration’s August 2018 policy would have rendered students in F, J and M status unlawfully present for minor technical violations thus subjecting them to 3 and 10 year bars from reentering the United States.

The February 6, 2020  Guilford College et al v. Chad Wolf et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction holding the  August 2018 policy unlawful not just for the Plaintiffs “but for all those subject to its terms.” In addition to summarizing the Court’s well-reasoned justifications for granting Plaintiff’s summary motion in Guilford College, I also reflect on the Court’s justification for granting a nationwide injunction shortly following Justice Gorsuch’s disapproval of such nationwide injunctions in Department of Homeland Security v. New York on January 27, 2020.

As background, the August 2018 policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

This decision makes permanent a preliminary injunction that was granted on May 3, 2019 on grounds that 1) USCIS had issued the August 2018 policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court agreed with the Plaintiffs showing that the language, purpose, context, and effect of the August 2018 USCIS policy rendered it a legislative rule. For a legislative rule to be valid it must have been promulgated in compliance with the APA’s notice and comment procedures under U.S.C. § 553. Thus, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy. While acknowledging that the distinction between legislative and interpretive rules is “enshrouded in considerable smog”, the Court found the August 2018 policy to be a legislative rule rather than an interpretive rule as it changed the policy for calculating unlawful presence. It established a binding norm for adjudicators to start calculating unlawful presence from the date of the status violation.

With respect to Plaintiff’s contention that the August 2018 policy violated the statute at INA §212(a)(9)(B)(ii), the provision is reproduced in its entirety to better explain the Court’s reasoning:

“Construction of unlawful presence – For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

The Court opined that it was clear that unlawful presence accrued “after the expiration of the period of stay authorized” in §212(a)(9)(B)(ii). Since F, M and J nonimmigrants were admitted under “duration of status” there is no express expiration date. Under the August 2019 policy, the nonimmigrant “starts accruing unlawful presence…the day after he or she engages in an unauthorized activity.”  The August 2019 policy, according to the Court,  “improperly dissolves the distinction between the ‘expiration of the period of stay authorized’ and the violation of lawful status.” The second ground for setting aside the August 2019 is significant. Even if the administration promulgated a rule under the APA, as it appears to be proposing to do so, it may still potentially be set aside as violating §212(a)(9)(B)(ii).

On top of the Court’s reasons for granting a permanent injunction, it also grants a nationwide injunction despite Justice Gorsuch’s scolding against this practice in DHS v. New York a week earlier. Justice Gorsuch complained that a single judge enjoined the government from applying the new definition of public charge to everyone without regarding to participation in this lawsuit, and that they are “patently unworkable” and sow chaos. Earlier, Justice Thomas too complained in his concurrence in Trump v. Hawaii that universal injunctions are a recent phenomenon and that federal courts’ equitable powers were constrained after the country’s founding. Hence, nationwide injunctions are constitutionally suspect. Mila Sohoni, a professor at the University of San Diego law school, argues in the Harvard Law Journal that nationwide injunctions are not a recent phenomenon and this practice goes all the way back to the 19th century. Because nationwide injunctions have a long pedigree, moves today by judges, lawyers in the Trump administration, members of Congress and legal scholars to do away with the universal injunction would be a sharp departure from precedent and practice.

The Court in Guilford College properly reasoned that the scope of an injunction is dictated by “the extent of the violation established, and not by the geographical extent of the plaintiff class.” The Court further held that “Plaintiffs seek a remedy that applies not just anywhere, but to anyone who would otherwise be subject to the policy implemented by the August 2018 PM.” Moreover, as Professor Sohoni has argued, if the policy is violative of the APA, then it must be set aside under 5 USC 706(2). The Fourth Circuit has also explained in IRAP v. Trump that nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that federal immigration laws must be enforced vigorously and uniformly. Moreover, the plaintiffs in Guilford College were dispersed throughout the US further justifying a nationwide injunction. And to counter Justice Gorsuch’s point that nationwide injunctions sow chaos, could it also not be argued that the lifting of a nationwide injunction would sow even greater chaos if a law that is potentially inconsistent with a statute or unconstitutional is implemented until it is found so by a court – thus causing needless hardship to hundreds of thousands, even millions, of would be immigrants? Another legal scholar Amanda Frost agrees that “nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts.” As the executive has been steadily expanding its powers, a nationwide injunction can act as an important check against the executive branch especially when a polarized and ineffective Congress is unable to do so, according to yet another legal scholar Suzette Malveaux.

Finally, why are people in favor of restrictionist immigration policies within the Trump administration making a fuss about nationwide injunctions? It already happened the other way when Judge Hanen issued a nationwide injunction in Texas v. USA  against President Obama’s expansion of deferred action to parents of US citizen children. Judge Hanen justified the grant of a nationwide preliminary injunction on the ground that if millions began to benefit from a policy that was potentially in violation of the APA or the INA, there would be no effective way of “putting the toothpaste back in the tube should the plaintiffs prevail on the merits.”  When Judge Hanen issued a nationwide injunction, the very same people who are now in charge of implementing hurtful immigration policy cheered. Today, they are critical of the nationwide injunction when courts block their immigration policies.   They cannot have it both ways!