Nationwide Injunctions are the Most Effective Tool for Protecting Constitutional Rights

By: Ronak Patel

Disclaimer: The views expressed in this post are those of the author and do not necessarily reflect the views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Despite the undemocratic nature of nationwide injunctions, they are a necessary tool for protecting our nation’s most vulnerable communities from constitutional violations by the executive branch. In 2025, the United States Supreme Court effectively outlawed nationwide injunctions. See Trump v. CASA, Inc., 145 S. Ct. 2540 (2025). Nationwide injunctions prevent the government from implementing a challenged law, regulation, or other policy with respect to all persons and entities, even those not before the court in the litigation. Joanna R. Lampe, Nationwide Injunctions: Recent Legal Developments, Congress (December 2, 2021), https://www.congress.gov/crs-product/LSB10664.

During President Donald Trump’s second term, he signed Executive Order 14160. Exec. Order No. 14160, Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. 8449 (Feb. 14, 2025). The Order stated the Fourteenth Amendment did not extend citizenship to everyone born in the United States. Id. Legal experts believe the Trump Administration signed this executive order to challenge the use of nationwide injunctions by lower-court judges. Amy Howe, How Birthright Citizenship Made it Back to the Supreme Court, SCOTUSblog (September 29, 2025), https://www.scotusblog.com/2025/09/how-birthright-citizenship-made-it-back-to-the-supreme-court/. In court filings, the Trump Administration did not address the constitutionality of its order; instead, the filings requested the Court to prevent lower courts from issuing nationwide injunctions. Id.

In Trump v. CASA, the Court sided with the Trump Administration. One of the policy reasons it used to justify narrowing the use of nationwide injunctions was its belief that “[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” CASA, 145 S. Ct. 2540, 2562 (citing Maryland v. King, 567 U.S. 1301, 133 S. Ct. 1, 183 L. Ed. 2d 667 (2012)). In essence, the Court is stating that the true harm of nationwide injunctions lies in preventing the president from executing the desires of the electorate. Id. The decision effectively ratifies executive overreach.

The Court is mistaken to believe the true threat to democracy is a judiciary that wields the power to check the executive. An unchecked executive branch is the true danger to civil liberties and freedoms. Given the recent trend of presidents relying on executive orders to govern, there needs to be a check on this power. Susan A. Hughes, Explainer: Executive orders as a governing tool, Harvard Kennedy School (June 4, 2025), https://www.hks.harvard.edu/faculty-research/policy-topics/democracy-governance/explainer-executive-orders-governing-tool. Throughout U.S history, we have witnessed the executive violate constitutional rights. In the aftermath of Pearl Harbor, President Franklin Roosevelt enacted Executive Order 9066, which directed officials to relocate Japanese-Americans to relocation camps. Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), abrogated by Trump v. Hawaii, 585 U.S. 667, 138 S. Ct. 2392, 201 L. Ed. 2d 775 (2018). In a decision that abrogated Korematsu, Chief Justice John Roberts, who sided with the Trump administration in CASA, recognizes there is a need to check the executive when he acknowledged the injustice of Executive Order 9066, “[t]he forcible relocation of U.S Citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” Trump v. Hawaii, 585 U.S. 667, 138 S. Ct. 2392, 201 L. Ed. 2d 775 (2018).

In the aftermath of CASA, class actions have replaced nationwide injunctions as the method to obtain injunctive relief against executive orders. Barbara v. Trump, No. 25-CV-244-JL-AJ, 2025 WL 1904338 (D.N.H. July 10, 2025). Supreme Court Justice Amy Coney Barrett believes class actions are a viable way to challenge the constitutionality of the executive branch. See CASA, 145 S. Ct. 2540. Supporters of this argument claim class action lawsuits are a way to protect constitutional rights while ensuring district judges don’t overstep their authority.

However, this argument ignores the challenges of class action lawsuits. One challenge in a class action lawsuit is the process to certify a class. Fed. R. Civ. P. 23. First, parties must meet a four-element test for certification of the class: the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Next, plaintiffs would need to prove injunctive relief is appropriate by showing, “the party opposing the class [the federal government] has acted or refused to act on the grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the whole class.” Fed. R. Civ. P. 23 (b)(2). Finally, the plaintiffs would need to prove class members have “common questions of law or fact” and the plaintiff representing the class does not have issues of fact or law that “predominates” questions of fact and law of the class. Fed. R. Civ. P. 23 (b)(3). 

Supreme Court Justice Sonia Sotomayor correctly explained that the process of certifying a class requires a hearing and interlocutory reviews if the class is not certified, which adds significant delay and cost. Trump v. CASA, Inc., 145 S. Ct. 2540, 2596 (2025) (Sotomayor, S., dissenting). The delay and cost associated with filing class action lawsuits sound like a minor inconvenience, but it is important to remember that many Americans lack the resources for legal services. In a survey conducted by the Legal Services Corporation, 46% of respondents indicated that cost was their reason for not seeking legal services. The Justice Gap: The Unmet Civil Legal Needs of Low Income Americans, Legal Services Corporation, https://justicegap.lsc.gov/ (Last visited July 27, 2025). Therefore, the public relies on nonprofits. In CASA v. Trump, the lawsuit was filed by a nonprofit. According to CASA’s tax records, it ended its fiscal year 2024 with a net income (revenue minus expenses) of -$1,274,164. Casa Inc., Nonprofit Explorer, https://projects.propublica.org/nonprofits/organizations/521372972 (Last visited July 27, 2025). For nonprofits that already operate on thin margins, the additional cost of filing class actions is a barrier to obtaining justice for vulnerable communities.

Furthermore, requesting injunctive relief through a class action to protect constitutional rights leads to inequity. The Court ignores that “regulatory schemes that depend on nationwide application for effective implementation, a patchwork of traditional, parties-only injunctions may be more disruptive than even an injunction that halts enforcement in full.” Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065 (2018). During Trump’s first term, he signed an executive order restricting the travel of foreign nationals from Syria, Iran, Yemen, and Somalia. Exec. Order No. 13,780, Protecting the Nation From Foreign Terrorist Entry Into the United States, 82 Fed. Reg. 13,209 (March 6, 2017). After the Order went into effect, the U.S. District Court for the District of Massachusetts issued a geographically limited injunction, confusing customs officials, that led to inconsistencies in which foreign nationals could enter the country through Logan Airport. Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065 (2018).

Granting injunctive relief through class actions will lead to citizens having their constitutional rights protected based on the jurisdiction they reside. It is impracticable to require the public to bring class action lawsuits in each jurisdiction to prevent the executive from violating a constitutional right. Protecting the rights of vulnerable communities has always been a challenge, and the Supreme Court’s decision in CASA v. Trump will create additional obstacles to protecting those rights. As frustrating as it can be for voters to see their elected officials’ actions struck down by a district judge, nationwide injunctions provide the most effective check on the executive.