The constitution, the courts, and nationwide injunctions

The Supreme Court will consider the propriety of nationwide injunctions next week in three consolidated cases involving challenges to President Donald Trump's executive orders purporting to end birthright citizenship. The flurry of nationwide injunctions since Trump's re-election creates the impression that the issue before the high court is a political one. It is not. Rather, the Constitution compels the conclusion that the lower courts--at least in the context of the current birthright citizenship litigation--exceeded their Article III authority.

The trio of cases come to the high court from both coasts enjoining, throughout the entire United States, enforcement of the President's Jan. 20, 2025, executive order (EO) concerning birthright citizenship. Specifically, a federal judge in Washington in State of Washington v. Trump, in a case brought by four states and two individuals, enjoined "the Order's implementation and enforcement on a nationwide basis." The Maryland case of CASA Inc. v. Trump addressed an identical challenge to the birthright citizenship EO, with this case brought by two nonprofit organizations and five individuals. The federal judge in the CASA case likewise entered a nationwide injunction. And finally, in State of New Jersey v. Trump, a federal judge in Massachusetts granted the plaintiffs in that case, namely 18 states, the District of Columbia, and San Francisco, a nationwide injunction against the Order's enforcement and implementation.

The Trump Administration sought stays of the nationwide injunctions from the district courts and the relevant court of appeals. However, all the lower courts denied the requested stays, leading the President to seek relief in the United States Supreme Court.

In the application for a stay, the President began by noting the birthright citizenship challenges "raise important constitutional questions with major ramifications for securing the border," before stressing he had but "a 'modest' request" for the high court: The Trump Administration seeks only to "restrict the scope" of the preliminary injunctions "to the parties actually within the courts' power." In other words, the Trump Administration was not requesting a stay of the injunction--just the nationwide application of the injunction.

While the Trump Administration's application for a stay highlights what it calls the "epidemic proportion" of universal injunctions entered since the start of the current administration--courts entered more universal injunctions and temporary restraining orders in February 2025 alone than during the first three years of the Biden Administration--the partisan divide does not dictate the propriety of nationwide injunctions in these consolidated cases: The Constitution does.

Article III of the Constitution extends the judicial power only to "cases" and "controversies." Such power authorizes federal courts to provide relief to the parties before it, but as the Trump Administration aptly argued in its application, courts "cannot grant relief to strangers to the litigation." Yet that is precisely what the lower courts did in enjoining the enforcement and implementation of the birthright citizenship EOs throughout the United States.

In issuing the nationwide injunctions in the birthright cases, the lower courts also exceed their Article III authority in a second way, with the judges ignoring the constitutional requirement of "standing."

To seek relief from a federal court, a plaintiff must have "standing" or a "concrete and particularized injury" caused by the defendant. Without "standing" there is no actual "cases" or "controversy" and thus no Article III authority. The Supreme Court has further clarified that a plaintiff must establish standing 'for each form of relief that they seek."

In the birthright cases, the lower courts doubly transgressed the standing requirement of Article III. First, they permitted twenty-plus states to challenge the EO even though the state governments lacked a "concrete and particularized injury" flowing from the denial of citizenship to babies born to illegal immigrants. Second, even assuming the states and the non-profit plaintiffs satisfactorily alleged a "concrete and particularized injury," such standing does not permit a court to provide relief to other individuals not before the court, such as the newborns. But, again, that is precisely what the courts did in entering the nationwide injunctions.

The Article III problem is not merely an antiquated nicety concerning the meaning of "cases and controversies." To the contrary, the lower courts, by grasping power where none exists, infringe on the fundamental separation of powers established by the Constitution. As the Supreme Court has explained, and as the Trump Administration stressed in its application, "Article III does not empower federal courts to 'exercise general legal oversight of the Legislative and Executive Branches.'" And "[t]o reach beyond the litigants and to enjoin the Executive Branch's actions toward third parties 'would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly [courts] do not possess.'"

The Supreme Court's willingness to hear oral argument on the question at this interim stage of litigation, coupled with the numerous statements made by justices in various concurrences condemning nationwide injunctions in the context currently before the high court, suggests a majority of the court will agree with the Trump Administration that the injunction should be limited to "the parties actually within the courts' power." Such a holding would be limited, however, because the Trump Administration expressly noted that the cases do not present the question of whether the Administrative Procedure Act authorizes courts to vacate agency action universally.

This acknowledgement proves significant because many of the nationwide injunctions entered against the Trump Administration come from challenges brought under the Administrative Procedure Act or APA. But that statute expressly provides federal courts with authority to "hold unlawful and set aside agency action" that are, among other things, arbitrary and capricious or is contrary to law. Such "setting aside" of an agency action will have a nationwide effect, much like a nationwide injunction, but the propriety of such an order differs, not in degree, but in kind, from the nationwide injunctions before the Supreme Court in the birthright cases.

The Supreme Court's analysis of "standing" in the birthright cases may nonetheless impact the flurry of lower court nationwide injunctions under the APA because the majority of the APA lawfare against the Trump Administration comes from states and non-profits which lack any concrete injury. Many of the nationwide injunctions issued in the APA cases were improperly issued for other reasons as well, for instance, because there was no final agency action or an alternative remedy existed, such as a suit for money damages in another forum, namely the Court of Federal Claims.

But addressing nationwide injunctions under the APA must wait for another day. For now, the Supreme Court's focus will be limited to the propriety of such universal remedies in the context of the birthright cases. And the constitution guides that decision.