American Bonaparte, American Kritarchy Part II

The Supreme Court Has Put an End to Nationwide Preliminary Injunctions.

Earlier this year I published an essay entitled "American Bonaparte, American Kritarchy," which warned that the United States was facing a constitutional crisis caused by overuse of nationwide preliminary injunctions:

With the House and Senate under Republican control, Trump’s opponents have turned to judicial action to slow or stop Trump’s muscular exercise of executive power — and it has worked.

Every single one of [Trump’s major policy initiatives] has been blocked by a district court case… How did the Judicial Branch come to be so powerful that a District Court judge representing 700,000 people can unilaterally and immediately halt the entire federal government before even holding a trial?

To answer that question, I traced the origins of judicial supremacy back to Marbury v. Madison (1803), where the Supreme Court first assumed the power of judicial review. I then documented the later emergence of nationwide preliminary injunctions, from Lewis Publishing (1913) through Wirtz v. Baldor (1963) and Harlem Valley v. Stafford (1973). I showed that what had begun as rare exceptions used only in emergencies had metastasized into routine tools of political warfare.

At the time I wrote American Bonaparte, American Kritarchy, the second Trump administration had received more universal injunctions in two months than the entire judiciary had issued in the previous four decades. I ended the essay with a call for action:

To allow a single district judge issuing an injunction binding the federal government’s actions nationwide is, bluntly, an arrogation of power to the judiciary far in excess of anything justifiable by Constitutional law, legal theory, or Anglo-American history…

Justice Thomas has explicitly invited the Supreme Court to review the permissibility of such injunctions “if their popularity continues”, signaling that he believes the high court must rein them in.

Justice Gorsuch has quipped that the increase of nationwide injunctions in recent years “is not normal” and “not an innovation we should rush to embrace”, partly because it allows plaintiffs to win far more relief than their own case would normally merit​.

With two Supreme Court justices calling for reform, there is some cause for hope that it will be settled before the US government collapses into endless litigation… Whatever the case, something must be done.

Today, something was done.

The Case that Challenged the Kritarchy: Trump v. CASA, Inc.

Trump, President of the United States, et al. v. CASA, Inc., et al.. is a Supreme Court case that originated when President Trump proclaimed Executive Order No. 14160, titled "Protecting the Meaning and Value of American Citizenship."

Issued on January 20, 2025, the order declared a new policy for the United States: persons born in the U.S. would not be recognized as citizens if their mother was unlawfully present or lawfully but temporarily present, and their father was neither a U.S. citizen nor a lawful permanent resident at the time of their birth. This executive action directly challenged a century of settled law and interpretation of the Fourteenth Amendment's Citizenship Clause.

Predictably, the EO ignited a conflagration of lawsuits. Individuals, organizations like CASA, Inc., and a coalition of 22 states, the District of Columbia, and the city of San Francisco, filed separate suits in federal district courts in Maryland, Massachusetts, and Washington. They sought to enjoin the implementation and enforcement of Executive Order 14160, arguing it violated the Fourteenth Amendment and Section 201 of the Nationality Act of 1940.

Each district court, without exception, found the Executive Order likely unlawful and, crucially, issued universal preliminary injunctions. These injunctions barred executive officials from applying the Executive Order to anyone, not just the plaintiffs in the respective cases. The Courts of Appeals, in turn, denied the Government's requests to stay this sweeping relief. Accordingly, the case was brought before the United States Supreme Court.

Supreme Court Rules that Judges Don’t Get to Just Rule

The Court, in an opinion delivered by Justice Barrett, began by acknowledging that the escalating use of universal preliminary injunctions demanded judicial review:

The question whether Congress has granted federal courts the authority to universally enjoin the enforcement of an executive or legislative policy plainly warrants our review… It is easy to see why. By the end of the Biden administration, we had reached “a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.” The trend has continued: During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions. As the number of universal injunctions has increased, so too has the importance of the issue.

And what did the Court have to say on the issue? As it happened, the Court’s analysis of the question was virtually identical to my own. It started with a historical assessment of the scope of equitable power granted to federal courts and concluded that the universal preliminary injunction was a recent and unprecedented innovation without historical basis:

The Judiciary Act of 1789 endowed federal courts with jurisdiction over “all suits in equity,” and still today, this statute “is what authorizes the federal courts to issue equitable remedies.” Though flexible, this equitable authority is not freewheeling. We have held that the statutory grant encompasses only those sorts of equitable remedies “traditionally accorded by courts of equity” at our country’s inception.

We must therefore ask whether universal injunctions are 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 answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding… [U]nder longstanding equity practice in England, there was no remedy “remotely like a national injunction…”

Nor did founding-era courts of equity in the United States chart a different course. If anything, the approach traditionally taken by federal courts cuts against the existence of such a sweeping remedy… The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority.

That the absence continued into the 20th century renders any claim of historical pedigree still more implausible.

The majority opinion then denied that universal injunctions were the modern equivalent of the old equitable "bills of peace,” noting that class actions, not universal injunctions, were their actual analogs:

The bill of peace lives in modern form, but not as the universal injunction. It evolved into the modern class action, which is governed in federal court by Rule 23 of the Federal Rules of Civil Procedure. 7A Wright, Federal Practice and Procedure §1751, at 10 (“It was the English bill of peace that developed into what is now known as the class action”); see Hansberry v. Lee, 311 U. S. 32, 41 (1940) (“The class suit was an invention of equity”). And while Rule 23 is in some ways “more restrictive of representative suits than the original bills of peace,” Rodgers v. Bryant, 942 F. 3d 451, 464 (CA8 2019) (Stras, J., concurring), it would still be recognizable to an English Chancellor.

It went on to deny that a universal preliminary injunction was necessary to offer “complete relief,” writing:

The equitable tradition has long embraced the rule that courts generally “may administer complete relief between the parties.”

We agree that the complete-relief principle has deep roots in equity. But to the extent respondents argue that it justifies the award of relief to nonparties, they are mistaken. “Complete relief ” is not synonymous with “universal relief.” It is a narrower concept…

Consider an archetypal case: a nuisance in which one neighbor sues another for blasting loud music at all hours of the night. To afford the plaintiff complete relief, the court has only one feasible option: order the defendant to turn her music down—or better yet, off. That order will necessarily benefit the defendant’s surrounding neighbors too; there is no way “to peel off just the portion of the nuisance that harmed the plaintiff.”

But while the court’s injunction might have the practical effect of benefiting nonparties, “that benefit [is] merely incidental.” As a matter of law, the injunction’s protection extends only to the suing plaintiff—as evidenced by the fact that only the plaintiff can enforce the judgment against the defendant responsible for the nuisance. If the nuisance persists, and another neighbor wants to shut it down, she must file her own suit.

The individual and associational respondents are therefore wrong to characterize the universal injunction as simply an application of the complete-relief principle. Under this principle, the question is not whether an injunction offers complete relief to everyone potentially affected by an allegedly unlawful act; it is whether an injunction will offer complete relief to the plaintiffs before the court.

The majority then dismissed policy arguments for and against universal injunctions as irrelevant:

As with most disputed issues, there are arguments on both sides. But as with most questions of law, the policy pros and cons are beside the point. Under our well-established precedent, the equitable relief available in the federal courts is that “traditionally accorded by courts of equity” at the time of our founding. Nothing like a universal injunction was available at the founding, or for that matter, for more than a century thereafter. Thus, under the Judiciary Act, federal courts lack authority to issue them.

Finally, the majority opinion rejected the notion that the Judicial Branch was some sort of generalized agency empowered to oversee the Executive:

Some say 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. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.

Accordingly, the Court ruled in favor of the Trump Administration and against the black-robed army of kritarchists that had paralyzed his Presidency:

The Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. The lower courts shall move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity.

But, of course, this being the Supreme Court, everyone had a bit more to say.

Supreme Court Holds Supreme Court In Contempt

A majority opinion of the Supreme Court is, by definition, the product of consensus; and as such it tends to be moderate and temperate in tone and style. Aggressive rhetoric of the sort we internet users use in “trolling” and “flame wars” is generally left to concurring and dissenting opinions.

Rarely does a majority opinion treat a dissent with as much unabashed contempt as today’s opinion treats the dissent of Justice Jackson. It’s so remarkably contemptuous that I feel obligated to quote it almost in full:

The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.

Waving away attention to the limits on judicial power as a “mind-numbingly technical query,” she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush…

We will not dwell on JUSTICE JACKSON’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.

Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law… JUSTICE JACKSON skips over that part [b]ecause analyzing the governing statute involves boring “legalese”…

JUSTICE JACKSON would do well to heed her own admonition: “[E]veryone, from the President on down, is bound by law.” That goes for judges too.

Brutal.

Supreme Court Concurs with Supreme Court

Trump v CASA had not one, not two, but three concurring opinions supported by four different justices. I don’t have time or space today to explore these concurrences with the depth they deserve, so I’ll just briefly summarize them.

• Justice Thomas, joined by Justice Gorsuch, wrote a concurrence that reinforced the majority's stance that the Judiciary Act does not permit universal injunctions as there is no historical tradition for such broad relief. He stressed that the "complete-relief principle" acts as a ceiling, not a mandate, and urged lower courts to carefully tailor remedies to the plaintiffs' injuries, warning against attempts to replicate universal injunctions under a different guise.

• Justice Alito wrote a concurrence, joined by Justice Thomas, that raised two "unresolved" issues that could threaten the practical significance of the decision: the availability of third-party standing and lax class certification. He expressed concern that if states could bring third-party suits on behalf of all their residents to obtain broad injunctions, or if district courts were to certify nationwide classes without rigorous adherence to Rule 23 (governing class actions), the universal injunction would effectively "return from the grave under the guise of 'nationwide class relief.'" He urged federal courts to be vigilant against such potential abuses.

• Justice Kavanaugh wrote a third concurrence, that highlighted the Court's role as the "ultimate decider" of the interim legal status of major federal statutes and executive actions. He acknowledged that plaintiffs might seek classwide relief under Rule 23(b)(2) or ask courts to "set aside" agency rules under the Administrative Procedure Act. However, he emphasized that today's decision requires district courts to follow proper legal procedures, significantly limiting their ability to award preliminary nationwide or classwide relief unless legally authorized. He underscored that the Court will continue to be the final arbiter of national uniformity in these matters.

If you have time, I urge you to read these concurrences in full. They are strategic signals that map the terrain for future litigation. Each one outlines a different vector by which judicial activists will attempt to circumscribe or overcome today’s ruling. Studying these concurrences today will allow you to predict what’s coming tomorrow.

Will President Trump Take the Win?

With universal injunctions from district judges blocking executive actions at every turn, Trump had been stopped short of pursuing the MAGA platform he was elected to implement. Today’s ruling changes that. It’s a significant victory he could use to restore the momentum to his stalled domestic agenda.

But will Trump will take the win?

I wish I knew. Last year, in my essay American Eschaton Part III, I worried that the American elite might use Trump to manipulate us into global war with populist support:

Imagine, if you will, that the smartest members of the ruling class have concluded that Trump is very likely to win; imagine, further that they believe economic calamity is unavoidable or global war is inevitable or necessary. If so, then it would make sense to allow Trump to be elected and then “accelerate” progress towards these events. Why?

If there is an economic collapse under Trump’s administration (perhaps due to de-dollarization), he will be blamed in the same way that Herbert Hoover was blamed for the Great Depression; and just as Hoover’s economic policies were utterly discredited for generations, so too will Trump’s. Moreover, the resulting economic conditions might pave the way for a new Roosevelt on the Left with the usual socialist promises to make things better.

On the other hand, if there is a global war, then having Trump in office is virtually the only means by which young white men — the core of our fighting force — are likely to be persuaded to accept a draft or go to war. Not many men would die for Biden or globohomo, but if Trump issues the call and the cause seems patriotic, many (not all, but enough) will respond.

How such a war might break out; I’ve already discussed. Trump does not seem likely to escalate against Russia, but it seems entirely possible he might support Israel if its war breaks out into a wider war, perhaps triggering a cascade into global war…

These worries have certainly been on my mind a lot as I’ve watched the White House take an increasingly strident stance towards Iran in the last few weeks.

But I’m not entirely certain they’re correct. I’m not convinced that President Trump's recent pivot toward interventionist foreign policy has much ideological depth at all. Trump’s activism abroad might simply be… what happens when a second-term President gets frustrated by an inability to get anything done domestically. Trump wouldn’t be the first US President to look overseas when he was stymied at home. From Wilson’s wartime idealism after domestic disappointment, to Clinton’s Kosovo strikes during impeachment, to Obama’s Libya intervention after facing a Republican House, foreign policy has always been what American Presidents do when they can’t do what they want domestically.

Now, with the courts no longer tying his hands, Trump can do what he wants domestically. He has the chance to prove that his platform was more than rhetoric, that he can translate populist will into institutional change. But if he drifts further into global entanglements, seduced by the drama of war or the applause of the foreign policy establishment, then he’ll prove just the opposite.

Contemplate this on the Tree of Woe.