Classes May Be the Surprise Answer to Universal Injunctions (1)

The US Supreme Court heard oral arguments May 15 in cases challenging President Donald Trump’s executive order restricting birthright citizenship. Lower courts have issued nationwide or universal injunctions preventing the order from taking effect, which the Trump administration argues these courts lack the power to do.

I expected the arguments to cover universal injunctions and birthright citizenship, and they did. I did not expect extensive discussion of class actions under Federal Rule of Civil Procedure 23—which wound up being, according to Adam Feldman of Legalytics, one of the top three topics raised at the arguments. Or as Stanford law professor Mila Sohoni put it, “The breakout star of the oral argument was the Rule 23(b)(2) injunctive class action.”

I was not alone in being surprised by how prominently class actions figured in the arguments. Also caught off guard was Vanderbilt law professor Brian Fitzpatrick, a leading expert on class actions and author of the book “The Conservative Case for Class Actions,” whom I interviewed earlier this week.

“I was surprised by how much class actions were mentioned,” Fitzpatrick told me. “I realize they are a possible alternative to nationwide injunctions, but I didn’t realize how strong the interest was in them. It seemed that the government had put all their eggs in that basket—or that the justices saw class actions as the only viable alternative.”

Solicitor General D. John Sauer leaned hard on class actions in his argument. When Justice Elena Kagan asked what can be done about an illegal executive order, Sauer said that “Article III [of the Constitution] and the courts’ traditional equitable practices provide a range of tools to address that, including a potentially nationwide class action”—but that “a universal injunction is not one of those tools.”

Why might class actions be helpful to the Trump administration? Fitzpatrick explained that criticisms of nationwide injunctions fall into two buckets: formalist or technical concerns, and functional or practical ones. Class actions address both—at least in part.

On the formalist side, the government argues that it’s unconstitutional to award relief like an injunction to an individual who’s not a party to the case. Class actions address this problem by using the class certification process to make these individuals—i.e., individuals other than the named plaintiff in a class action—into formal or official parties.

On the functional side, there are a number of problems with universal injunctions. They encourage forum- and judge-shopping: Plaintiffs challenging a nationwide policy get to pick where they file their case. They prevent percolation of legal issues through the lower courts. Once a judge blocks some government action with a universal injunction, the action ceases, and other courts don’t get to rule on it.

And they’re unfair to the government: It can win the vast majority of lawsuits challenging a policy, but if one judge finds that policy unlawful, it gets frozen nationwide. As Sauer stated in the opening of his argument, universal injunctions “operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere.” If the government wins a challenge to a policy in one court, that ruling doesn’t stop plaintiffs from filing lawsuits in other courts. But if the government loses and gets hit with a nationwide injunction, it can’t implement that policy anywhere, full stop.

The class-action mechanism is less effective in addressing these practical problems, according to Fitzpatrick. Because class members are bound by an adverse ruling, the class action does fix the problem of unfairness to the government because of a lack of reciprocity. But it doesn’t address the problem of forum- and judge-shopping, since lawyers challenging a national policy can pick where to file their class action, and it also doesn’t allow for percolation, since granting relief to a nationwide class blocks that policy across the country.

In other words, put another way, there’s not much of a practical difference between a nationwide class action, on the one hand, and a universal injunction, on the other. As an example, Fitzpatrick cited a class action challenging the Trump administration’s policy allowing migrants to be deported to places other than their country of origin, so-called “third countries,” without giving them a chance to object.

The lawsuit was brought by a coalition of immigrant-rights organizations, who shrewdly filed in the US District Court for the District of Massachusetts—where Democratic appointees outnumber Republicans by 11-2, among active judges. The case wound up before Judge Brian Murphy, a Biden appointee.

Five days after the complaint was filed, Murphy issued a temporary restraining order blocking the policy across the country. A few weeks later, and less than a month after the lawsuit was initiated, he certified a nationwide class and partially granted a preliminary injunction. (On May 20, Murphy ordered the administration to “maintain custody” of certain migrants who may have been deported to South Sudan—which is not their country of origin.)

One might argue that at least class actions require plaintiffs (and their lawyers) to satisfy Rule 23’s requirements for certifying a class, including what Sauer referred to as “the rigors of the certification process.” But an opinion the Supreme Court issued the day after the birthright-citizenship arguments calls even this argument into question.

In A.A.R.P. v. Trump, the justices extended their earlier order preventing the Trump administration from deporting alleged Venezuelan gang members under the Alien Enemies Act (AEA). The Supreme Court provided relief to a “putative” class, i.e., a class asserted to exist by the plaintiffs but not yet certified by the district court.

In fact, as Justice Samuel Alito complained in his dissent, “the Court issue[d] ‘preliminary relief’ to a putative class that the District Court has explicitly refused to certify,” and “without providing any substantive analysis suggesting that the District Court’s analysis of the class certification issue was incorrect.” In Alito’s view, even assuming a court can grant relief to a putative class, it “must at least consider whether class certification is likely” before doing so.

According to Georgetown law professor Steve Vladeck, “the majority’s holding that plaintiff classes can be provisionally certified by district courts for purposes of providing temporary relief, even without resolving the likelihood of full class certification, is going to have an impact in lots of cases—well beyond the AEA.” He characterized the court’s conclusion as “the quiet bombshell in the ruling.”

Or, as Fitzpatrick told me, if a court can provide class-wide, injunctive relief to a “putative” class, without certifying the class or even determining that class certification is likely, “that’s giving away the whole ballgame—it’s functionally equivalent to a universal injunction.”

In Fitzpatrick’s view, the better practice is for a court to reach at least a preliminary conclusion on the likelihood of class certification before issuing temporary relief to a putative class. But he said he understands the appeal of providing immediate relief to a putative class, given how swiftly the Trump administration moves.

In A.A.R.P., for example, the plaintiffs alleged that the government planned to deport some migrants with only 24 hours’ notice. And as the court pointedly noted—citing the case of Kilmar Armando Abrego Garcia, the Maryland man sent to an El Salvadoran prison—“the Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador.”

So even if a court takes only a few days to make preliminary findings about the likelihood of class certification, it might be too late for the class members. As Fitzpatrick said, “Today we arguably have more need than ever to give relief to a putative class—because we have no assurance that the president isn’t going to put all these people on a plane to El Salvador, making the entire litigation moot.”

If we believe the court overreached in granting relief to a putative instead of certified class, we could be looking at a situation where “the Court has acted wrongly in enjoining action that is probably, or even certainly, illegal,” lawyer and legal commentator Ed Whelan wrote. He added, “Another reason to condemn [the Trump administration’s] unconstitutional actions is that they predictably generate bad law that expands judicial power.”

In other words, Trump critics might argue—paraphrasing the old saying, “Hard cases make bad law”—that bad administrations make bad law.

Going back to the birthright-citizenship oral arguments, certain comments by the justices resonate differently in light of the A.A.R.P. ruling that came out the next day. Justices Neil Gorsuch and Brett Kavanaugh asked multiple questions about giving preliminary relief to putative classes—presumably because they knew the court was about to do just that in A.A.R.P., even if the advocates in the birthright-citizenship cases did not.

Explaining the appeal of the class-action mechanism over the universal injunction, Kavanaugh said that at least the class action “complies with the rules.” And while jumping through the hoops of Rule 23 class certification “may all be a technicality” to some, in the legal realm, as lawyers and judges, “we care about technicalities.” Well said, Justice Kavanaugh.

The cases are Trump v. CASA, US, No. 24a884, argued 5/15/25; A.A.R.P. v. Trump, US, No. 24A1007, order 5/16/25.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

Read More Exclusive Jurisdiction