If a federal court of appeals rules that a state law is unconstitutional does that mean the state can no longer enforce the law?

The answer is “it depends.” Was there a universal injunction? If not, then the state likely can still enforce the law. This reality has huge implications for the current debate on universal injunctions and yet it was entirely absent from last week’s oral argument in the birthright citizenship cases and the surrounding commentary.

In this post I briefly recap the debate over “universal injunctions,” discuss how they play into litigation involving state and local governments, and then analyze why they are perhaps most necessary in cases against those governments.

My bottom line is this: State and cities, and state court systems, don’t have to follow federal circuit court precedent. That’s why injunctions, especially universal injunctions, are so important.

What are universal injunctions and how are they different when it comes to the feds vs. states and cities?

A “universal injunction” is a court order ordering a defendant to act—or not to act—and which benefits people other than the plaintiffs in the case. For example, say a state adopts a law that criminalizes going to Catholic mass. It’s an obviously unconstitutional law, right? Sure, but how can affected Catholics get courts to stop it from being enforced? Suppose a family of Catholics bring a lawsuit against the state officials who enforce the law and they ask for an injunction to allow them to go to mass without fear of prosecution. If the injunction only ordered the state officials to not enforce the law against the family then the injunction would not be “universal.” Under the injunction’s narrow terms the state officials could still enforce the law against other Catholics. But if the injunction ordered the officials to not enforce the law, period, it would be “universal,” that is, the injunction would apply universally to anyone the officials might want to enforce the law against.

As I explained in The Unpopulist recently, how universal injunctions are used against state and local governments is a big—perhaps the biggest—part of the universal injunction story. Yet, it is how they apply to the federal government where there are more understandable problems. Unfortunately, this means the federal issue is a tail that wags the dog. Or to use a different metaphor, and as I said in The Unpopulist, getting rid of universal injunctions because of how they apply to the federal government would be throwing the baby out with the bathwater.

The biggest issue with universal injunctions vis-à-vis the United States is there are 94 district courts where plaintiffs can seek them and yet the government just has to lose in one before losing everywhere. This is the “multiple chancellors” problem of nationwide injunctions.

I’ve suggested a few fixes to this legitimate issue, one being a kind of multidistrict litigation panel for injunction lawsuits and another being the Supreme Court taking more cases. Indeed, the latter was raised at oral argument last week at the Court. Further, the need for an injunction in situations where the Supreme Court rules on the merits of an issue but does not actually provide for injunctive relief was softened, as Jack Goldsmith noted, when the Solicitor General stated that the U.S. government would follow Supreme Court precedent, thus obviating the need for injunctive relief, universal or otherwise. (Whether this concession was more credible than the SG selling some land in Florida is another story.)

States and cities go to court too.

But that concession and the problem of 94 district courts don’t apply when it comes to states and cities. Yet, a ruling by the Supreme Court about the legitimacy of universal injunctions will affect injunctions not just against the one federal government but against 50 states and thousands of municipalities. And the supposed fix of the Supreme Court taking more cases is not a viable option when it comes to these smaller units of government.

When civil rights plaintiffs sue a state (usually as a technical matter this means suing a state official) there are far less federal district courts to worry about. States are divided at most into four federal district courts. Usually just one or two. And within every state, all of the federal district courts channel into one court of appeals. So even in the situation where there’s multiple lawsuits in different federal districts in a state any incongruity (such as an injunction is issued in one case but denied in another) will get sorted out at one federal court of appeals. For municipalities there’s even less of a problem. You might have multiple lawsuits in the same district against a city, and districts judges don’t have to follow each others’ rulings, but those cases will still go to the same court of appeals.

Very few constitutional challenges to state and municipal laws and practices go on from the courts of appeals to the U.S. Supreme Court. Of course, this is true for litigation against the federal government too, but simply because of the number of jurisdictions and laws this is even more the case for all non-federal governments in the country.

This paucity of Supreme Court precedent poses a problem for state and municipal litigation. Getting to the U.S. Supreme Court isn’t just a neat capstone to a case that means it will receive more publicity. It’s also special because unlike a published opinion in a federal appellate court a Supreme Court ruling will apply in all courts in the country. Including state courts. This is a nuance that has been entirely lost in our universal injunction debate, but it’s central to why those injunctions are of vast importance at the state and local level.

State courts do their own thing.

States and cities don’t prosecute their laws in federal court (outside of odd procedural exceptions, like prosecuting federal officials, that aren’t relevant here). Let’s go back to our hypothetical anti-Catholic mass law. If a state enforced that law it would do so in its state court system. Once it began the federal courts wouldn’t get involved because of Younger abstention, a doctrine that prohibits federal courts from enjoining ongoing state prosecutions. Therefore, if Catholics wanted help from the federal judiciary they’d need to file a pre-enforcement challenge in federal court—which is how most federal civil rights lawsuits work.

Say a Catholic family goes to federal court, wins their case, and the court grants an injunction against the relevant state officials, but it’s not a universal injunction. At that point the officials, as I warned in my The Unpopulist piece, might just not appeal and still enforce the law against everyone else. But say they do appeal and then lose again at the federal court of appeals, and the court upholds the injunction for the family but does not expand it to a universal injunction. What happens then?

As a formal matter, not much. Other Catholics can use that federal court of appeals precedent to file their own lawsuits in the same federal district court(s) and get their own injunctions. But if the state prosecutes others and takes them to state court the federal court of appeals precedent does not mean those cases will be thrown out. At most it’s simply persuasive precedent, as binding as precedent from a different federal court of appeals or even a different state court system. And it certainly doesn’t prevent the officials from doing things short of actual prosecutions, like send threatening “cease and desist” letters or even arresting and booking people.

Therefore, when it comes to the federal courts, only a universal injunction (or an injunction in a class action where the class is properly certified and the class truly is everyone who might be affected by the law—not an easy task) can prevent a state or municipality from enforcing an unconstitutional law, short of the case miraculously going to the U.S. Supreme Court. Of course, the state court system could either rule the law is unconstitutional or issue a universal injunction, but it’s a sad day for the federal courts if they’re not available to enforce federal constitutional rights, as the Fourteenth Amendment and our federal civil rights laws are supposed to guarantee.

If the U.S. Supreme Court says that universal injunctions are illegitimate, across the board, then the hypotheticals I’m throwing out in this post will become very real. Not for a law banning Catholic mass, but for all kinds of real laws violating constitutional rights at the state and local level—just take your own ideological bias and conjure some up, it’s not hard. Federal courts will be powerless to enjoin state officials and local governments outside of the plaintiffs before them (and outside of cumbersome class actions) and even federal appellate precedent won’t prevent them from prosecuting people beyond those who have actually been plaintiffs in federal lawsuits.

This is a very real scenario in an equilibrium we haven’t had to face in a very long time because universal injunctions have been used for a very long time. As was said at oral argument last week, over 100 years ago in Pierce v. Society of Sisters a federal district court in Oregon universally enjoined the enforcement of a real anti-Catholic law that banned most private schools and was overwhelmingly targeted against Catholics parochial schools. In the future the federal courts might have far less effect on laws like that if state officials do not want to follow federal appellate precedent. Which is exactly what the Solicitor General wouldn’t commit to following at oral argument last week.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.