On June 27, the US Supreme Court handed President Donald Trump what he called a “GIANT WIN” – a ruling that, at least on paper, curbed the power of lower courts to issue broad “universal injunctions” blocking presidential policies. In Trump v. CASA, the Court’s 6-3 decision found that lower courts had “likely” overstepped by issuing orders halting many of the president’s initiatives nationwide, often based on the claims of just a handful of plaintiffs.

While this appeared to be a decisive blow against Trump’s legal adversaries, the victory was far from absolute. Opponents of the president quickly began exploring alternative legal strategies to achieve the same effect as the now-curtailed universal injunctions. Chief among these tactics: the use of class-action lawsuits, which allow a small number of named plaintiffs to seek relief on behalf of large, similarly situated groups – potentially nationwide.

Norm Eisen, a key strategist behind what he has described as a “rule of law and shock and awe” approach to challenging Trump policies, moved rapidly. Within days of the CASA ruling, Eisen and his Democracy Defenders Fund helped bring a case in the District of New Hampshire challenging the president’s executive order to end birthright citizenship. The suit named five plaintiffs but sought to represent “a nationwide class of all other persons similarly situated.”

On July 3, the district court ruled in the plaintiffs’ favor, rejecting the Trump administration’s objections and effectively halting the policy’s implementation nationwide. Around the same time, plaintiffs in the District of Columbia also succeeded in blocking the president’s restrictions on asylum claims at the southern border.

These developments suggested that while the Supreme Court had narrowed one legal tool, it had left others – like nationwide class actions – largely untouched. This, many scholars argued, meant that the real legal battle between the executive and judiciary was only beginning.

Before CASA, universal injunctions allowed challengers to presidential policies to obtain a single favorable ruling from any one of hundreds of federal district court judges. That one decision could suspend an executive action nationwide, even for people who were not parties to the lawsuit.

Supporters of universal injunctions said they were vital to preventing irreparable harm from unlawful policies, especially while cases wound slowly through the courts. Critics, however, saw them as an illegitimate expansion of judicial power, often used to stymie the will of a democratically elected president. Both Democrats and Republicans, depending on who held the White House, accused judges of politicized rulings and decried the forum shopping that often accompanied these cases.

An analysis by RealClearInvestigations found that out of 350 cases brought against the Trump administration as of June 11, 2025, roughly 80% were filed in just 11 of the nation’s 91 district courts – nearly all in Democratic strongholds with Democratic-appointed judges.

While the CASA majority concluded that universal injunctions were inconsistent with legal tradition, it left open the possibility of nationwide relief through other means – particularly class actions.

Class actions, in theory, impose stricter requirements. Under Federal Rule of Civil Procedure 23, plaintiffs must prove that their claims are representative of a larger group, that common legal or factual issues predominate, and that they can adequately represent the entire class. Certification often requires substantial briefing and analysis, and defendants can appeal a judge’s certification decision.

But as the New Hampshire birthright citizenship case showed, determined legal teams can move quickly to assemble and certify nationwide classes with just a few representative plaintiffs. Critics warn that if judges take a lax approach to Rule 23’s requirements, class actions could become a universal injunction by another name.

Justice Samuel Alito, joined by Justice Clarence Thomas, warned in his concurrence that without “scrupulous” enforcement of class certification rules, lower courts could resurrect the universal injunction “under the guise of ‘nationwide class relief.’”

Alito’s warning appeared prescient almost immediately. On July 2 – just five days after the CASA decision – US District Judge Randolph D. Moss in Washington, DC, certified a class covering not only the 13 individuals and three nonprofit groups who challenged Trump’s asylum restrictions, but also every person subject to the policy now or in the future. The judge found the policy unlawful and unconstitutional, effectively blocking it nationwide.

Chad Mizelle, chief of staff to Attorney General Pam Bondi, reacted sharply on social media, accusing “rogue district judges” of defying the Supreme Court and continuing to block presidential policies “under the guise of class actions.” The Trump administration has appealed Moss’s ruling.

Other cases have followed a similar pattern, with plaintiffs using class actions to halt deportations, demand disclosures related to January 6 investigations, and challenge other high-profile Trump policies.

Legal scholars note that class actions are easier to certify when challenging broad government policies that apply equally to everyone in the class. University of Chicago Law Professor Samuel Bray, a vocal critic of universal injunctions, explained that “the existing class action standards can be difficult when bringing a class action for damages, but they are easy to meet” in cases involving uniform government actions.

UCLA Law Professor David Marcus, who supports universal injunctions, conducted a study of several hundred “public interest” cases from 2011 to 2020, finding that courts granted class certification to plaintiffs about 75% of the time.

Georgetown University’s Stephen Vladeck predicts that the proliferation of nationwide class actions will eventually force the Supreme Court to weigh in again. If the justices are generally sympathetic to such relief, he said, it will blunt the impact of CASA. But if they also view nationwide class actions skeptically, CASA could become a major constraint on lower courts’ ability to check the executive branch.

The CASA decision also left room for several other possible end-runs around the ban on universal injunctions:

1. Third-Party Standing for States – Justice Alito noted that the ruling did not address whether states can sue on behalf of all their residents, potentially seeking nationwide relief. Without strict limits, this could undermine CASA in practice.
2. Misinterpretation of “Complete Relief” – Justice Thomas, joined by Justice Neil Gorsuch, warned that lower courts might confuse the Court’s permission to grant “complete relief” to the parties in a case with the power to issue relief to everyone nationwide.
3. Vacatur under the Administrative Procedure Act (APA) – In a footnote, Justice Amy Coney Barrett pointedly left open whether the APA authorizes courts to “hold unlawful and set aside” federal agency actions. This form of relief, called vacatur, can nullify regulations entirely — as Judge Moss did in the asylum policy case.

Some in Congress are already moving to close these loopholes. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has introduced the Judicial Relief Clarification Act, which would restrict the use of vacatur as a backdoor to nationwide relief. Rep. Darrell Issa (R-Calif.), who authored House legislation to curb universal injunctions before the CASA ruling, echoed Justice Alito’s warnings and pledged to push ahead with legislative fixes.

Meanwhile, the Supreme Court has been actively policing lower courts it views as defiant. In a recent case involving the president’s power to remove independent agency leaders, Chief Justice John Roberts reminded lower courts that the Court’s precedents “squarely control” – a pointed rebuke to judges who, in the majority’s view, ignored clear guidance.

Jesse Panuccio, a former top Justice Department official, warned that some judges who previously believed they could “govern the whole nation from their courtrooms” will likely continue to act aggressively.

The CASA decision was supposed to mark a turning point in the long-running dispute over the power of federal courts to issue sweeping injunctions against presidential actions. Instead, it appears to have triggered a new phase in the conflict – one in which legal creativity and procedural maneuvering may keep the fundamental questions alive for years.

With nationwide class actions, third-party standing claims, and APA vacatur still on the table, the judiciary retains several tools to block presidential policies on a broad scale. Whether the Supreme Court will tolerate these workarounds, or move to shut them down in future rulings, remains to be seen.

For now, the battle between the executive and judiciary over the limits of presidential power – and the courts’ authority to check it – is far from over.

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Source: Weekly Blitz :: Writings