–Masoom Sanyal, Final Year Law Student, Gujarat National Law University, India
[Editor’s Note: This post is part of our series on perspectives by undergraduate law students.]
The Supreme Court of the United States (SCOTUS) had delivered an opinion in Trump v. CASA, Inc. that could be the latest step in undoing the American democracy. Expectedly, the Court has been divided on ideological lines, with six Conservative Justices writing the majority opinion, and the three Liberal Justices dissenting. This essay, first, analyses the issue at hand and the response of the Majority, and then analyses the Dissent (with a special focus on Justice Jackson’s opinion) and the lurking dangers for American democracy.
The Issue of Universal Injunctions
Upon entering office, President Trump signed an executive order (“the Order”) effectively abolishing birthright citizenship for children born to (i) mothers who are illegally in the US and fathered by a man who is not a US citizen, and (ii) mothers who are lawfully but temporarily in the US and fathered by a man who is not a US citizen. Importantly, the order would only come into force 30 days after its signing – meaning it would only apply to children born after the date of its coming into force. However, this order is directly in the teeth of the plain language of the 14th Amendment of the US Constitution which follows the principle of jus soli and guarantees birthright citizenship to “all persons” born in the US. The Order also does not respect a long line of judicial precedents and statutory provisions that have entrenched birthright citizenship. Against this order, many plaintiffs (including pregnant women who were due to give birth, and organizations representing such women) went to courts in different states. Three different courts in three different states found the Order to be prima facie unconstitutional and issued a “universal injunction” against taking any action under the Order – meaning that the Order could not be enforced against anyone anywhere in the US, until its constitutionality was determined. The government appealed against these injunctions to the courts of appeal and again three different appellate courts refused to vacate the universal injunctions and found that the Order was possibly unconstitutional. In sum, six courts have examined the Order and arrived at a conclusion that it is possibly unconstitutional, and its enforcement should be stayed until its constitutionality is conclusively determined. The Executive filed an appeal before the SCOTUS which resulted in the instant opinion.
The Executive instead of challenging the injunction orders – perhaps for fear that having satisfied the test for issuing an injunction, the orders could not be easily found fault with – chose a more foundational challenge: it argued that the federal judiciary simply did not have the power to issue a universal injunction. In the words of Justice Jackson, the Executive bid to “vanquish so-called ‘universal injunctions’; Justice Jackson, in her dissent, correctly points out that this is, in reality, a smokescreen – what the Executive is actually seeking is a permission to engage in unlawful conduct despite a court having determined that such conduct is possibly unconstitutional. The Majority, however, plays along and grants this wish. For its analysis, it frames a highly technical issue (innocently or deliberately, falling for the executive’s smokescreen): “whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions?”
The Majority begins its analysis by relying in the precedent in Grupo Mexicano which held that the “equity jurisdiction conferred on the Federal Court in the same as that the High Court of Chancery in England possesses.” Therefore, the Majority enters into its primary line of enquiry, which Justice Jackson calls a “mind-numbingly technical query” – the Majority asks, “[a]re universal injunctions sufficiently analogous to the relief issued by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act?” The assertion, therefore, simply put, is this: if the High Court of Chancery (i.e., the Equity Court) of England had the power to issue universal injunctions, then the federal judiciary too would have that power. (To this, Justice Jackson retorts by saying that it “obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?”)
The Majority, in its primary opinion authored by Justice Barrett, returns a stupefying finding: universal injunctions are not “sufficiently analogous” to reliefs available in the court of equity in England at the time of the founding. The conservative majority goes to great lengths to distinguish between the “bill of peace” – a remedy available in English equity courts – from the remedy of universal injunction. The majority instead argues that “bill of peace” is analogous to a “class-action” and seeking a “universal injunction” is an attempt at short-circuiting the class-action route available to a plaintiff since, admittedly, bringing a class-action is procedurally cumbersome. The majority opinion reaches its height of going to great lengths at distinguishing a universal injunction by using a nuisance hypothetical: it says that where a plaintiff seeks an injunction against a person blasting music and the court grants it, the injunction is only granted in favour of the plaintiff and only he has the right to enforce it, any other person who benefits from the injunction is merely incidental. Therefore, in some cases, an injunction would inevitably have an incidental effect on those who are not a party to the suit, but a power to grant a universal injunction does not exist. The hypothetical simply does not work; the majority does not dwell at all on the enormous difference between a civil action brought against a nuisance against a neighbor and an action seeking an injunction against a government trying to enforce an unconstitutional law. The majority appears unmindful of the enormous disparity in consequences between its hypothetical and the case at hand: if the neighbour in the hypothetical does not turn his music off, at best what one loses is their sleep; if the government is not restrained, in this case, what is at stake are constitutional rights, and even more, it allows the government to wrench a child from its mothers’ lap and deport the child.
After analysing a long-line of precedents, the Majority finds that even in the US universal injunctions only appeared after a century had elapsed since the founding and enactment of the Judiciary Act, and that in recent decades courts had increasingly granted such injunctions. The majority purports to end the menace of courts issuing universal injunctions, on the basis that historically no such power had been exercised by the Equity Courts of England (a premise that is not unchallenged, as the dissent ably demonstrates by showing precedents and practices as well as observations from scholars that equitable reliefs have always been dynamic, true to their purpose, and in some cases, such as bills of peace and taxpayer cases, remedies analogous to universal injunctions have been granted by English equity courts as well as American courts).
Finally, the majority holds, as a logical conclusion of its highly technical query and analysis of precedents, that the power to issue a universal injunction does not exist with the federal judiciary. Any injunction, if issued, can only be in respect of plaintiffs before the court, or “the named plaintiffs,” and not against anyone anywhere in the United States. Cut through the legalese, it means: a government can only be asked to not enforce an order that the court has found possibly unconstitutional against only those who are before the court and obtained an injunction, but it can be enforced against those who have not obtained any injunctions – the majority is simply ignorant of the fact that there could be people who do not have the wherewithal or resources or ability to obtain such injunctions. It is as good as saying that your constitutional right would not be protected unless you are resourceful enough to go to a court and obtain an injunction in your own name. Justice Jackson points out the absurdity in this position: the court has effectively created two zones of people: First Zone in which the executive is required to follow the law, because the inhabitants of this zone have been able to secure a personal injunction (and the inhabitants of this zone are likely to be the rich, the well-connected, and the resourceful); and a Second Zone, inhabited by those who have not been able to obtain such an injunction (likely those who do not have the ability and werewithals to go to courts, the poor and the uneducated), who are left to the prerogative of the Executive as to whether their constitutional rights will be respected. “Of course,” Justice Jackson writes, “the Executive might choose to follow the law in this zone as well – but that is left to its discretion.” The majority, in effect, creates a zone where following the constitution becomes an executive prerogative, not an iron-clad requirement.
One struggles to understand how a Court can reach an outcome this inequitable while deciding on an issue about the equity jurisdiction of federal courts. As Justice Sotomayor puts it, “there can be no serious question over where the equities lie in these cases.” Today what the court takes away is not just the power to issue a universal injunction, but perhaps the power of a court to do justice equitably.
Dangers for Democracy
Some dangers for the American democracy that this Judgement gives rise to are apparent in the analysis above. The SCOTUS has stripped the federal courts (including itself) of the power to prevent the executive from acting unconstitutionally against anyone, anywhere in the United States. The dangerous implications of laying down such a position cannot be overstated. As mentioned above, and repeated for emphasis, it is as good as making constitutional-compliance an executive prerogative. Justice Sotomayor demonstrates another alarming possibility. Let us suppose an Executive Order is declared unconstitutional by a court (suppose the SCOTUS itself), in absence of the power to universally injunct the executive from enforcing that order, how does the court ensure constitutional compliance? In absence of the power to prevent the executive from acting unconstitutional against anyone anywhere, rule of law cannot exist. And in absence of the power to effectively stop the executive from acting unconstitutionally, nothing prevents the executive from churning out more patently unconstitutional orders – simply, a pandora’s box can be opened that the courts would not be able to contain, because the highest court in the land has just stripped them of the power to do so. Democracies across the world, and institutions within those democracies, increasingly bring to mind that image from the era of Balkanization – the traumatized Bengal tiger in a Belgradian zoo who had begun to gnaw at his own limbs. Today, the SCOTUS is that tiger. Of course, no institutions are entirely perfect but, as Justice Jackson writes, “[e]ven if such institutions may be destined to pass away, it is the duty of the Court to be last, not first, to give them up.” The SCOTUS, however, failed in that duty and issued an opinion which, without exaggeration, can be the undoing of the American democracy.
Suggested citation: Masoom Sanyal, Trump v. CASA, Inc. – The Latest Step in the Undoing of American Democracy, Int’l J. Const. L. Blog, Jul. 12, 2025, at: http://www.iconnectblog.com/trump-v-casa-inc-the-latest-step-in-the-undoing-of-american-democracy/
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