Will the Supreme Court curb nationwide injunctions?

There are many legal controversies set to come before the Supreme Court as the left wages lawfare against the president’s agenda.

One sure to engender significant controversy is that over the president’s birthright citizenship executive order.

Under that order, the administration indicated it would stop conferring citizenship on those born in America but not “subject to the jurisdiction thereof” as per the 14th Amendment — that is, it would not extend citizenship for example to children of illegal aliens – those “owing allegiance to anybody else,” as then-Senate Judiciary Committee Chairman Lyman Trumbull said during the debate over the amendment’s ratification.

Yet before the Court gets to the merits of the issue, the Trump administration has brought a different aspect to the relevant cases before it – one transcending the birthright citizenship issue and myriad other critical ones. 

On March 13th, the administration filed three separate but essentially identical applications before the Supreme Court calling for stays of the various universal injunctions that lower courts had issued against the administration halting its birthright citizenship order.

There, the administration said, via Acting Solicitor General Sarah M. Harris that the government had a “‘modest request’: while the parties litigate weighty merits questions, the Court should “restrict the scope” of multiple preliminary injunctions that “purpor[t] to cover every person * * * in the country,” limiting those injunctions to parties actually within the courts’ power.”

According to the administration, those injunctions, brought by nearly two-dozen states, two organizations, and seven people, cover everyone everywhere – halting the birthright citizenship order for up to hundreds of thousands of individuals.

They go so far as to prevent the feds from even developing guidance about implementing the order if they could do so.

This practice, a relatively modern one arguably inconsistent with our legal traditions and precedents, results in judges not only issuing rulings going way beyond the parties to cases and controversies before them – and sometimes for parties who don’t even want to be covered – but often in realms that are supposed to be beyond judicial review, while creating massive incentives to judge shop and use the courts as tools of political warfare. After all if you only have to find one willing judge out of around 700 to paralyze an administration, and you believe the stakes are as important as the president’s opponents, of course you’re gonna do it.

These universal injunctions are particularly egregious, the White House argues, because of how far-reaching they are – touching millions of aliens in America, even though injunctions could have been imposed just covering the plaintiffs’ issues; because the states who brought suit allegedly lacked standing to assert others’ rights; and again because the courts are “restrain[ing] the Executive branch’s internal workings.”

Plus, the government says:

individual district courts layered their universal injunctions on top of each other, creating a “jurisdictionally messy” scenario where the government must run the table over months of litigation in multiple courts of appeals to have any chance of implementing the Order anywhere

The injunctions also accentuate an extant circuit split – that relevant appellate courts have ruled differently about the legitimacy of universal injunctions before.

What’s more, these injunctions come against a background of what the government calls an onslaught of such orders of “epidemic proportions.”

“District courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden Administration,” the administration writes.

Those TROs are generally unappealable and are often decreed without even a hearing for the administration; they have at times not only prohibited policy but demanded the administration pay out monetary damages, as in the $2 billion foreign aid freeze case in the D.C. district court; and, also as in that case, they have covered not just America but policy globally.

Just days after Trump administration provided that context, this issue exploded into the public consciousness when the Chief Judge of that D.C. District Court, James Boasberg, ordered the administration to halt, via universal TRO, its policy to pursue Tren de Aragua terrorists under the Alien Enemies Act – even demanding that the administration turn around planes deporting them as he was developing that order.

The question for the Supreme Court is, if not now when? 

Here you have an archetypal set of cases concerning the use of universal injunctions, and against an administration being faced with them at record speed and of record size and potency.

The first Trump administration was the most enjoined in history by many multiples – facing 64 such directives – more than half of all issued between 1963 and 2023.

Then, Justices Thomas and Gorsuch said the Court ought to rule on their legitimacy, with the former calling them “legally and historically dubious,” and the latter “not normal” and “patently unworkable.”  

Even the outgoing Biden administration asked the Supreme Court to weigh in on their usage.

It hasn’t.

It must. And if it fails to rein in lower courts drunk on judicial supremacy, the legislative branch that created the Article III courts will have to do it itself.