Public Charge: The Beginning of the End for Nationwide Injunctions?

Public Charge: The Beginning of the End for Nationwide Injunctions?

In August 2019, the Department of Homeland Security (DHS) published a new policy for determining whether an immigrant’s utilization of public services rises to the level of a “public charge.”[1] Historically, the public charge designation has been reserved for those primarily dependent on the government for subsistence.[2] The new rule expands that definition to include immigrants enrolled in Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), and other commonly-used public benefit programs.[3] City attorneys and state attorneys general across the nation quickly challenged the rule for violating the Constitution and the Administrative Procedure Act (APA) and for reversing over a century of immigration laws.[4] Several federal courts issued preliminary injunctions but some limited relief to those states and parties who sued.[5] Judge George B. Daniels of the Southern District of New York, however, enjoined DHS from implementing the policy nationwide.[6] His October 2019 order defended the nationwide injunction as necessary to provide uniformity and complete relief.[7]

After Judge Daniels declined to stay the nationwide injunction,[8] the U.S. Supreme Court—in a 5–4 decision divided along ideological lines—granted DHS a stay. Justice Gorsuch, in a concurrence joined by Justice Thomas, stressed his disdain for the practice of district courts granting nationwide injunctions.[9] He condemned nationwide injunctions as “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.”[10] In Justice Gorsuch’s view, equitable remedies should redress only those injuries “sustained by a particular plaintiff in a particular lawsuit.”[11] Nationwide injunctions “go further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit.”[12] Thus, they arguably violate Article III’s “case or controversy” requirement.[13] For this point, Justice Gorsuch cited legal scholar Samuel Bray, who posited that class action lawsuits are a more appropriate mechanism to secure injunctions that provide relief to non-parties.[14] Lastly, in Justice Gorsuch’s estimation, nationwide injunctions are a recent invention that encourage forum shopping and create asymmetric stakes when plaintiffs sue the government.[15]

These concerns are not entirely without merit, as nationwide injunctions have become increasingly politicized in recent years. For example, when President Trump issued an executive order denying federal funding to sanctuary cities,[16] municipal and state attorneys drafted expedited briefs to thwart the policies of the federal government.[17] But Justice Gorsuch’s critiques do not tell the whole story.

First, forum shopping is not new. Just as challenges to President Trump’s policies have been brought in liberal strongholds such as California, Washington, and Illinois,[18] challenges to President George W. Bush’s environmental policies were brought in California[19] and challenges to President Obama’s policies were brought strategically in Texas.[20]

Second, class actions are not the solution Bray suggests. The Class Action Fairness Act of 2005 forces most class action lawsuits into federal courts,[21] where stricter requirements for class certification have gutted relief available to plaintiffs.[22] As a result, mass tort cases traditionally adjudicated as class actions are increasingly consolidated into multi-district litigation (MDL) suits.[23] In MDL suits, lawsuits with one or more common questions of fact are consolidated for pre-trial proceedings before returning to the courts in which they were filed for trial proceedings.[24] In practice, however, MDL is often a directed march toward settlement, meaning that most suits never reach trial or return to the original forum.[25] MDL’s emphasis on settlement is inconsistent with the goals of most lawsuits challenging the public impact of executive actions. Scholars also warn that consolidating challenges to executive action like the public charge rule in MDL risks an irreparable politicization of the process.[26]

DHS’s public charge rule presents more than a procedural quagmire: its implementation punishes immigrants for using programs like Medicaid and food stamps. This could have grave implications for the public health, welfare, and prosperity of our nation, as news alone of the rule had a chilling effect on immigrants’ use of public benefits.[27] The City and County of San Francisco—and other municipalities—argued that the new rule shifts the cost of public health assistance from the federal government to counties, overburdening local social safety net programs.[28] Immigrants would disenroll from Medicaid and federal housing assistance programs for fear that use of public benefits would weigh against them should they apply for a change in immigration status.[29] This, in turn, would result in greater use of city and county health services and greater housing insecurity risking homelessness.[30] Given these deleterious consequences, if the public charge rule—as multiple federal courts have found[31]—appears to violate the Constitution, APA, and federal immigration laws, why shouldn’t it be enjoined uniformly nationwide?

In this essay, I argue that it should, because nationwide injunctions are both a permissible exercise of judicial discretion and a desirable check on executive agencies. First, I provide an overview of recent academic debates surrounding the origin of nationwide injunctions; while the history is disputed, their constitutionality is clearly established. Next, I discuss the public charge rule’s suitability for a nationwide injunction due to its departure from more than a century of immigration law and its profoundly negative consequences for immigrants and society, which DHS failed to address. Ultimately, I contend that despite their recent politicization, nationwide injunctions are the most appropriate procedural tool to halt executive actions, like the public charge rule, that are implemented on a nationwide scale.

I. Nationwide Injunctions: Disputed History, Clear Constitutionality

It is no surprise that Justice Thomas signed on to Justice Gorsuch’s concurrence as, only two years prior, he too decried nationwide injunctions.[32] Concurring in Trump v. Hawaii,[33] Justice Thomas asserted that district courts’ authority to grant equitable relief is “limited by the traditional rules of equity that existed at the founding.”[34] He contended that universal injunctions are a “recent development, emerging for the first time in the 1960s” and that they “conflict with several traditional rules of equity, as well as the original understanding of the judicial role.”[35] But this account is not as clear cut as Justice Thomas would have us believe. His view fails to consider comparable remedies historically available in courts of equity, as well as nearly seventy additional years of history, wherein federal courts granted injunctions beyond the scope of named parties.[36]

Two leading scholars on opposite ends of the political spectrum, Samuel Bray and Mila Sohoni, both acknowledge that nationwide injunctions have their roots in the “bill of peace” remedy traditionally offered in courts of equity.[37] English courts of equity did not permit injunctions against the Crown, but parties could bring suit to restrain the actions of “particular officers [including the attorney general] against particular plaintiffs.”[38] A chancellor could consolidate suits involving a common claim against multiple defendants or by multiple plaintiffs.[39] Courts of equity could then issue a “bill of peace” resolving the common claims of the group.[40] Justice Thomas stressed that federal courts do not have “freewheeling power to fashion new forms of equitable remedies,” and, citing Justice Story, insisted that equitable remedies must be administered as they were in English courts of equity.[41] But his skepticism about nationwide injunctions is misplaced, as scholars across the political spectrum agree: the nationwide injunction does have its origins in English courts of equity.[42]

While Bray and Sohoni agree about the origins of the nationwide injunction, they disagree about the degree of similarity between nationwide injunctions and their historical forerunner. Bray insists that the bill of peace available through traditional English equity is not analogous in scope to the nationwide injunction,[43] while Sohoni asserts that, as early as the 1890s, the U.S. Supreme Court “most certainly” did not understand “the equitable power to give a bill of peace as ‘limited to a small group of similarly situations plaintiffs having some right in common.’”[44]

Sohoni points to Smyth v. Ames, an 1898 case in which railroad stockholders sued Nebraska state officers responsible for enforcing the state’s fixed railroad rates.[45] There, the Court held that the federal circuit court “sitting in equity, can make a comprehensive decree covering the whole ground of controversy and thus avoid the multiplicity of suits that would inevitably arise under the statute.”[46] It affirmed the circuit court’s injunction of the statewide regulation and emphasized that court’s authority to determine “once for all” the “interests of the entire community involved,” beyond the scope of named parties.[47] In so holding, Sohoni argues, the Court drew on principles in equity to grant a “supercharged bill of peace.”[48] Although the Court did not address directly whether nonparties should be enjoined, Sohoni zeroes in on its understanding “that the lower court’s determination of the rates’ invalidity would ‘determine[] once for all’ that the rates were unconstitutional.”[49]

Four years earlier, in Reagan v. Farmers’ Loan & Trust Company, the Court had already held that a decree of unconstitutionality would make the railroads’ rates unenforceable not only by parties but by nonparties as well.[50] Thus, the circuit court’s categorical ruling that the rates could not be enforced—and the Supreme Court’s affirmance of it—demonstrates tacit intent that the ruling apply to parties and nonparties alike.[51] For Sohoni, Reagan and Smyth together are proof that, as early as the 1890s, the Supreme Court recognized federal courts’ authority to enjoin nonparties upon finding that the law at issue was unconstitutional.[52]

Bray, on the other hand, traces the nationwide injunction only as far back as the early 1960s.[53] While he acknowledges that the Supreme Court affirmed a district-wide injunction in 1918,[54] he dismisses it as an “aberration more than the start of a new practice.”[55] He argues that the story of nationwide injunctions began in 1963, with Wirtz v. Baldor Electric Company.[56] There, the D.C. Circuit enjoined the Secretary of Labor from making wage determinations in the electrical motors and generators industry.[57] The suit was not a class action, yet the panel enjoined application of the Secretary’s wage determination not only to the three plaintiffs in the case but also to “any business in the industry.”[58] Thus, Bray argues, Wirtz was the first nationwide injunction in the history of the United States.[59]

Whether nationwide injunctions first emerged in the 1960s or the 1890s, however, is immaterial to their constitutionality. Judge Daniels’ nationwide injunction halting implementation of the public charge rule was a permissible exercise of the authority conferred on federal district courts by Article III. Article III gives all federal courts the power to decide cases in equity.[60] It does not discriminate based on a court’s position in the judicial hierarchy.[61] Thus, even a district court may grant a nationwide injunction where it is necessary to provide complete relief to the plaintiffs and where those plaintiffs can show a nationwide harm.[62]

Nevertheless, Justice Gorsuch argues that nationwide injunctions violate Article III’s case or controversy requirement because they order the government to take action with respect to “strangers to the suit.”[63] This claim that courts “cannot issue equitable relief extending further than needed to address the plaintiff’s ‘actual injury’ is at odds with long judicial practice.”[64] Take, for example, school desegregation; an order allowing a single nonwhite plaintiff to attend a white school would not address the systemic injury of segregated schools.[65] The Seventh Circuit applied similar logic in upholding a nationwide injunction against President Trump’s policy on withholding funds from sanctuary cities because “conditions imposed on one [city] can impact the amount [of funding] received by others.”[66]

Thus, despite the disputed history of nationwide injunctions, they are constitutional, making the appropriate question not whether district courts can issue nationwide injunctions but whether they should. In the case of DHS’s public charge rule, Judge Daniels was right to act, as DHS’s new rule discards more than a century of immigration law and inflicts profound costs on immigrants and society as a whole.

II. Beyond Procedure: Immigration Laws and the “Public Charge” Rule

Congress enacted its first immigration law in 1882, barring entry to the United States to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”[67] In October 2018, DHS issued a notice of proposed rulemaking to redefine “public charge.”[68] Ten months and 266,000 public comments later, DHS issued its final rule.[69] This new rule expanded the meaning of public charge to include any person who receives twelve months of public benefits over a 36-month period.[70] Public benefits include programs such as Medicaid, SNAP, and public housing assistance.[71] The rule primarily impacts immigrants applying for an “adjustment of status,” including immigrants seeking admission to the United States, as well as those applying for a green card based on the petition of a U.S. citizen or permanent resident family member.[72]

While the definition of public charge has evolved since its inception, until 2019, it could always be distinguished from a measure of wealth and income. The 1882 “Act to Regulate Immigration”[73] did not consider an immigrant a public charge “for simply receiving some assistance from the state.”[74] Indeed, the “best interpretation” of the 1882 Act is that the public charge designation did not apply to those who sought short-term or temporary relief from the state.[75] The Act was amended in 1903 to enumerate immigrants excluded from admission to the country.[76] That amendment separated “paupers” from “persons likely to become a public charge,” thereby differentiating the poor from those who may be institutionalized at the government’s expense and those dependent on government aid.[77]

The Supreme Court confirmed this distinction, differentiating immigrants designated as public charges from those with lower wage conditions. In Gegiow v. Uhl, the Court asked whether immigrants bound for Portland, Oregon—where the labor market was oversaturated and work was scarce—could be deemed likely to become public charges.[78] The Court held that they could not, stressing that immigrants could only be classified as public charges on the grounds of “permanent personal objections accompanying them irrespective of local conditions.”[79] Whether an immigrant was designated a public charge, therefore, depended on that individual’s general ability and willingness to work and earn a living, not the “particular wages or labor conditions that existed in the [immigrant’s] destination.”[80]

This narrow definition of public charge persisted throughout the twentieth century. In 1987, for example, the Immigration and Naturalization Service (INS) enacted an updated rule that excluded from the public charge designation anyone working domestically who could prove their work history and had not relied on government cash assistance.[81] Cash assistance at the time did not include public benefits such as food stamps, public housing, and Medicaid.[82] DHS’s 2019 rule includes all three.[83] In 1999, the last time the rule was amended, a “public charge” was defined as:

an [immigrant] who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Institutionalization for short periods of rehabilitation does not constitute such primary dependence.[84]

Thus, in over a century of immigration reform, a “public charge” has never meant a poor, working person. DHS’s 2019 rule is a significant departure: under it, an individual receiving a mere $182 in SNAP benefits over the course of thirty-six months could be considered a public charge.[85]

Setting aside concerns about the rule’s perversion of American values,[86] state and municipal claims center on the chilling effect that the rule has had and will continue to have with respect to immigrants who use Medicaid.[87] The rule deters immigrants from using Medicaid—and other public benefits—for fear that use will count against their applications for a change in immigration status. As fewer immigrants enroll in Medicaid, the costs of providing emergency care shift from the federal government to state and municipal hospitals.[88] Further, a lack of preventive care poses societal risks when families do not vaccinate their children.[89] DHS itself acknowledged the rule’s broad potential harms in its notice of proposed rulemaking.[90] Still, as the City and County of San Francisco argued, the final rule violated the APA because it failed to meaningfully consider or address these costs during the notice and comment process.[91] The Northern District of California agreed, holding that DHS’s response to comments “entirely fails to discuss” the costs that will be borne by states and hospitals.[92]

Instead of analyzing the possible injuries to immigrants and state governments, Citizenship and Immigration Services (USCIS)[93] promoted the new rule’s emphasis on “self-reliance” and “hard work.”[94] USCIS Acting Director Ken Cuccinelli explained that the rule “recognizes that some new arrivals to our country need the help of their family and community,” but distinguished familial support from that provided by the government.[95] Cuccinelli invoked his own family’s immigration narrative, claiming that his family “worked together” and never expected the government to provide for their needs.[96] Characterizing government aid and self-reliance as mutually exclusive, Cuccinelli explained that the Trump administration proffered the updated rule to “reinforce the ideals of self-sufficiency and personal responsibility” among immigrants.[97] His remarks imply that immigrants abuse public benefits when, in fact, native-born Americans consume more public benefits per capita than immigrants.[98] Further, these remarks fail to address the ways in which the new rule punishes immigrants for incredibly low utilization of public services.

Judges were not so blind to the rule’s immediate negative impacts and, across the country, granted preliminary injunctions halting implementation of the rule. Courts in New York and Washington issued nationwide injunctions to provide uniformity and complete relief,[99] while, in California, the court limited relief to the states and counties who joined the suit.[100] Comparing the public charge case with others brought against the Trump administration, the Northern District of California emphasized that nationwide injunctions are appropriate in “exceptional” cases, where nationwide action is required to provide complete redress to the plaintiffs and where a remedy of narrower scope cannot provide complete relief.[101] Such is the case here. Decreased participation in federal assistance programs because of the new rule shifts an economic burden onto states and municipalities to provide health services and address increased food, medical, and housing insecurity. These consequences are not limited only to those states who have brought suit, but affects all, party or not.

At the same time, the Northern District of California recognized that nationwide injunctions may “stymie novel legal challenges and robust debate arising in different judicial districts.”[102] Bray and Sohoni debate the value of such “percolation” in lower courts.[103] Bray argues that percolation makes for more balanced Supreme Court rulings,[104] while Sohoni persuasively argues that percolation leads to confusing, conflicting decrees.[105] Consistent with Sohoni’s observations, some issues, like the public charge rule, present such immediate, deleterious consequences that percolation risks sacrificing individuals’ health and safety and community resources in the name of federalism.[106] “Deportation of immigrants, travel bans implicating national security, and keeping families intact and protected under the law are instances where the courts may justifiably feel greater urgency and a reluctance to hold an executive order in limbo.”[107] Here too, where immigrants disenrolled from Medicaid and other public services immediately upon learning of the new rule,[108] allowing time for “percolation” would do more harm than good. While courts across the nation debate whether DHS’s notice and comment process hewed closely enough to the language of the APA, immigrant families would forego medical care and be evicted from their homes. Percolation promises only uneven harm; a nationwide injunction could provide universal relief.

III. The Path Forward

Justice Gorsuch, borrowing from Bray, wrote that nationwide injunctions “tend to force judges into making high-stakes, low-information decisions.”[109] But ten months of comment (and controversy) provided abundant analysis of DHS’s public charge rule.[110] Several states even warned that DHS’s rule, if enacted, would present “exceptional” circumstances warranting an immediate nationwide injunction to address immigrants’ exigent need for services like healthcare, food, and shelter.[111]

Bray advances a compromise: plaintiff-protective injunctions, where appropriate, in nationwide class actions.[112] Citing the school desegregation cases of the 1950s, he acknowledges the moral imperative that courts may face to act quickly and protect large groups of people via injunction.[113] But, even for school desegregation, Bray does not concede that broad national injunctions were necessarily the appropriate legal remedy.[114] Those injunctions, viewed by many as a judicial overreach, prompted the adoption of Federal Rule of Civil Procedure 23(b)(2), which was designed specifically to govern consolidation of litigation for injunctive relief in civil rights cases.[115]

Again however, Rule 23 class actions are quickly becoming less and less viable as a result of stricter standards for certification and procedural barriers imposed by the 2005 Class Action Fairness Act.[116] Even Bray acknowledges that the requirements for a class action are not easy to meet and that the class may need to be divided into subgroups.[117] Yet he still does not acknowledge fully the practical impacts of providing partial relief. If, in the public charge context, a subclass of individuals who have already applied for a change in immigration status is granted relief, but others are not, it could cause great confusion regarding who can safely use public services. While the class action was designed to protect non-parties, the additional procedural hurdles and time required could be the difference between an immigrant afraid to continue housing assistance remaining in an apartment or being evicted.

In the wake of less plaintiff-friendly procedural rules for class actions, many mass torts cases are now adjudicated through MDL.[118] But scholars Andrew Bradt and Zachary Clopton warn against bringing public law cases—like that challenging DHS’s public charge rule—through MDL. The problems MDL was created to solve do not exist in those cases.[119] MDL consolidates discovery; there is little to no discovery in public law cases.[120] MDL is a directed march toward a global settlement; public law cases, settled through politics and not litigant negotiations, are “poor candidate[s] for managerial judging.”[121] Further, for litigation like the public charge case that directly challenges an executive action, bringing it through MDL risks politicizing the until-now apolitical Judicial Panel on Multidistrict Litigation.[122]

Thus, nationwide injunctions emerge as a superior alternative to class actions and MDL for challenging executive action. Nationwide injunctions offer the flexibility and speed needed to address policies that cause concrete harm to Americans.[123] With Congress in “perpetual gridlock” and policies increasingly dictated by executive order and agency rulemaking, nationwide injunctions have become the most feasible check on the executive branch.[124] Accused of being partisan attacks,[125] they have become increasingly commonplace since 2000 and have been sought by states, municipalities, and interest groups to thwart controversial executive action by both Republican and Democratic administrations.[126] Yet accusations of partisan gamesmanship would hold no water unless the executive action taken is arguably illegal.

As of November 2019, federal courts had issued forty-two nationwide injunctions against Trump administration actions alone, compared to twenty-seven nationwide injunctions issued by federal courts in the entire twentieth century.[127] There may be more public vitriol toward President Trump and his policies than toward previous presidents,[128] but judges are not appointed to enforce public opinion, nor to uphold the policies of presidents from a particular party. Judges are appointed to say what the law is and to apply it.[129] The logical conclusion, therefore, is that judges have enjoined more Trump-era policies because more Trump-era policies exceed the limits of the rule of law.

I believe that national injunctions are the best mechanism for timely challenging national policies that run afoul of American laws and values. I wonder though, will Americans like myself who cheer state governments and organizations like the American Civil Liberties Union seeking nationwide injunctions against Trump administration policies feel the same when the executive branch is in different hands? And now that President Trump has packed the federal judiciary,[130] will nationwide injunctions become a barrier to future progressive policies?[131] The scattershot strategy of multiple states, municipalities, and interest groups filing lawsuits all over the country to obtain a nationwide injunction is hardly efficient. But faced with predatory policies that determine whether an individual can buy food, pay rent, or ultimately remain with their family in the only country they’ve ever known, nationwide injunctions are the most effective tool available to deliver liberty and justice for all.


Sarah Gallo: J.D. 2020, UC Berkeley School of Law and California Law Review Vol. 108 Publishing Editor. Many thanks to Professor Andrew Bradt for helping me get started with this piece, and to Noor Hasan, Alex Copper, and Miranda Rutherford for your invaluable edits and suggestions.

[1] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292 (Aug. 14, 2019) (codified at 8 C.F.R. §§ 103, 212, 213, 214, 245, and 248); see also Nicole Narea, Trump’s Rule Creating a Wealth Test for Immigrants Is Now in Effect, Vox (Feb. 24, 2020), [].

[2] Field Guidance promulgated by the Immigration and Naturalization Service in 1999 specified “that ‘public charge’ means an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.’ Institutionalization for short periods of rehabilitation does not constitute such primary dependence.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999) (citation omitted). In addition, food supplements, public health benefits, and housing assistance are not “intended for income maintenance” and are “not subject to the public charge consideration.” See U.S. Dep’t of Justice, Public Charge Fact Sheet, 2009 WL 3453730 (Oct. 29, 2011).

[3] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292.

[4] See, e.g., New York v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 334 (S.D.N.Y. Oct. 11, 2019) (order granting preliminary injunction); Make Rd. New York v. Cuccinelli, 19 Civ. 7993 (GBD) (S.D.N.Y. Dec. 2, 2019) (order granting preliminary injunction).

[5] See, e.g., City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 408 F. Supp. 3d 1057, 1084 (N.D. Cal. Oct. 11, 2019) (order granting preliminary injunction applicable only to the parties).

[6] See New York, 408 F. Supp. 3d 334 (order granting nationwide preliminary injunction); see also Washington v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 1191 (E.D. Wash. Oct. 11, 2019) (order granting nationwide preliminary injunction).

[7] New York, 408 F. Supp. 3d at 352–53. For example, an individual should not fear that moving to another state where the rule has not been enjoined would result in denial of adjustment of their immigration status. Id. at 353.

[8] See New York v. U.S. Dep’t of Homeland Sec., 2019 U.S. Dist. LEXIS 207310 (S.D.N.Y. Dec. 2, 2019) (order denying Defendants’ motion for stay of the preliminary injunction pending appeal).

[9] Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring) (on application for stay).

[10] Id. “[B]oth sides…[are] forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.” Id.

[11] Id.

[12] Id.

[13] Id.; see also U.S. Const. art. III, § 2.

[14] See Dep’t of Homeland Sec., 140 S. Ct. at 600–01 (Gorsuch, J., concurring) (citing Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–64 (2017)).

[15] Id. at 601. But see Mila Sohoni, The Lost History of the ‘Universal Injunction, 133 Harv. L. Rev. 920, 940–42­ (2020) (arguing that universal injunctions have been used regularly since the nineteenth century).

[16] In sanctuary cities, local officials refuse to hand over undocumented immigrants to federal officials for deportation and refuse to hold undocumented arrestees in jail due to their immigration status. See Darla Cameron, How Sanctuary Cities Work, and How Trump’s Executive Order Could Have Affected Them, Wash. Post (Jan. 18, 2017), [].

[17] See, e.g., Lisa Fernandez, San Francisco Becomes First City to Sue President Donald Trump After Filing Federal Immigration Lawsuit, NBC Bay Area (Jan. 31, 2017),[] (describing the City of San Francisco’s January 31, 2017 announcement of their lawsuit challenging the January 25, 2017 executive order regarding funding for sanctuary cities).

[18] For an example of a challenge to a Trump-era policy outside the public charge context, see Sierra Club v. Trump, 2019 WL 2247689 (N.D. Cal. May 30, 2019) (order granting a preliminary injunction to halt implementation of a policy “reprogramming” congressionally-approved funds for army personnel toward building a wall along the southern border with Mexico).

[19] See, e.g., Pub. Citizen v. Dep’t. of Transp., 316 F.3d 1002 (9th Cir. 2003) (holding that the Department of Transportation acted arbitrarily and capriciously in failing to prepare an environmental impact statement as required by the National Environmental Protection Act).

[20] See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (order enjoining the federal government from enforcing new DAPA and DACA policies against the states).

[21] Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. Penn. L. Rev. 1439, 1494–1509 (2008).

[22] See, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551–52 (2011). Wal-Mart was a nationwide class action brought by then-current and former female employees of Wal-Mart who alleged that the company discriminated against women in violation of Title VII. Id. at 2547. Prior to Wal-Mart, the commonality requirement for certification of a class action under Federal Rule of Civil Procedure 23(a)(2) required merely that there be a question of common law or fact with respect to the entire class. Id. at 2551. The Wal-Mart decision read into Rule 23(a)(2) a heightened standard, requiring that there must be an evidentiary finding of a common question at the pleading stage. Id. at 2555–56. The dissent accused the majority of substituting the 23(b)(3) predominance inquiry for the 23(a)(2) commonality inquiry in their analysis. Id. at 2565 (Ginsburg, J., dissenting). See also Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013) (holding that a class cannot be certified under Rule 23(b)(3) if “[q]uestions of individual damages calculations will inevitably overwhelm questions common to the class”).

[23] Andrew D. Bradt & Zachary D. Clopton, MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation, 112 Nw. U. L. Rev. 905, 910 (2018)

[24] Id. at 911.

[25] Id. at 913.

[26] Id. at 924–27. The Judicial Panel on Multidistrict Litigation “typically identif[ies] the transferee judge.” Id. at 924. “Every federal district judge was appointed to her seat by a president from one party or the other. Every federal district judge has a record that may trouble one or more parties. In other words, for the JPML, every choice in these cases is one that might attract criticism, whether warranted or not.” Id. at 925; see also David L. Noll, MDL as Public Administration, 118 Mich. L. Rev. 403, 408 (2019) (advocating reform to make MDL more transparent, accessible, and accountable so that it may be imagined as a form of public administration).

[27] Narea, supra note 1 (“An Urban Institute study found that, based on a survey of about 2,000 adults in immigrant families, 13.7 percent of them said that they or one of their relatives chose not to use non-cash benefits programs in 2018 as a result of reports about the rule. Eventually, the rule could lead up to 4.7 million people to withdraw from Medicaid and the Children’s Health Insurance Program (CHIP) alone, according to a report by the Kaiser Family Foundation.”); see also Beth Griffin, Change to Public Charge Rule Seen to Have Chilling Effect on Immigrants, Nat’l Catholic Reporter (Feb. 17, 2020),[].

[28] Complaint at 2, City & Cty. of San Francisco, 408 F. Supp. 3d 1057 (N.D. Cal. Aug. 13, 2019) (No. 3:19-cv-04717).

[29] Id.

[30] Id. at 8–10.

[31] Federal courts in California, New York, and Washington enjoined the public charge rule. See City & Cty. of San Francisco, 408 F. Supp. 3d 1057; New York, 408 F. Supp. 3d 334; Washington, 408 F. Supp. 3d 1191.

[32] See Trump v. Hawaii, 138 S. Ct. 2392, 2427 (2018) (Thomas, J., concurring). Justice Gorsuch’s concurrence in Dep’t of Homeland Sec. cites this opinion and largely mirrors its reasoning. See Dep’t of Homeland Sec., 140 S. Ct. at 600–01 (Gorsuch, J., concurring).

[33] The court, in a 5–4 decision split along ideological lines, held that President Trump’s executive order restricting travel from seven predominantly Muslim countries did not exceed his authority under immigration laws. Hawaii, 138 S. Ct. at 2410. Justice Thomas wrote separately to argue that nationwide injunctions are unconstitutional. Id. at 2425–26 (Thomas, J., concurring).

[34] Id. at 2426 (Thomas, J., concurring).

[35] Id.

[36] See Sohoni, supra note 15, at 942.

[37] See Bray, supra note 14, at 426 (“A bill of peace with multiple plaintiffs who represented the whole set of possible plaintiffs—some tenants representing all of the tenants, or some parishioners representing all the parishioners—is probably the closest analogy in traditional equity to the national injunction”); Sohoni, supra note 15, at 935–36 (describing the Supreme Court’s reliance on the logic of the bill of peace “to affirm injunctions against enforcement of state laws with effects on nonparties equal to or even greater than those of today’s universal injunctions”).

[38] Bray, supra note 14, at 425.

[39] Id.

[40] Id. at 426.

[41] Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring) (citing Boyle v. Zacharie & Turner, 6 Pet. 648, 658 (1832)).

[42] See Bray, supra note 14, at 426; Sohoni, supra note 15, at 935–36.

[43] Bray, supra note 14, at 426 (“A bill of peace was not used to resolve a question of legal interpretation for the entire realm. It was not enough that many people were interested in or affected by the outcome. It was instead a kind of proto–class action.”).

[44] Sohoni, supra note 15, at 941 (quoting Hawaii, 138 S. Ct. at 2427 (Thomas, J., concurring)).

[45] See 169 U.S. 466 (1898).

[46] Id. at 517.

[47] Id. at 517–18.

[48] Sohoni, supra note 15, at 940.

[49] Id. at 942 (quoting Smyth, 169 U.S. at 518).

[50] Reagan v. Farmers’ Loan & Tr. Co., 154 U.S. 362, 412–13 (1894); see also Sohoni, supra note 15, at 942.

[51] See Sohoni, supra note 15, at 942.

[52] Id. (“ Combined, the message of the two cases is simple and consequential: when a federal court exercising its powers in equity ‘declare[s], adjudge[s,] and decree[s]’ that an act ‘is repugnant to the Constitution of the United States,’ then that means the act must not be enforced by anyone, including nonparties.”) (quoting Smyth, 169 U.S. at 518) (original emphasis). Sohoni also addresses the argument by some scholars that the “significance of Reagan and Smyth has become overshadowed” by Ex parte Young, 209 U.S. 123 (1908), where the Court held that a federal court enjoining an unconstitutional state law may issue an injunction stopping the state’s enforcement against only the plaintiff, not nonparties. See id. To focus on that argument, she argues, misses the fact that Young is but a link in a larger chain of the Court’s transition toward granting relief against the constitutional wrong of enforcing an invalid law. Id. at 943 (citing David L. Shapiro, Ex parte Young and the Uses of History, 67 N.Y.U. Ann. Surv. Am. L. 69, 86–87 (2011)) Sohoni argues that Young’s plaintiff-protective injunction was an iconic “step in the evolution” of judicial review through an action for equitable relief but should not be “mistaken as its sum total.” See id.

[53] See Bray, supra note 14, at 437.

[54] See Hammer v. Dagenhart, 247 U.S. 251 (1918) (enjoining enforcement of a child labor statute in the Western District of North Carolina).

[55] Bray, supra note 14, at 436–37.

[56] Id. (citing Wirtz v. Baldor Elec. Co., 337 F.2d 518 (D.C. Cir. 1963)). Wirtz, like Dep’t of Homeland Sec., was a challenge to a new administrative rule.

[57] Wirtz, 337 F.2d at 520, 533–35.

[58] Bray, supra note 14, at 437.

[59] Id.

[60] U.S. Const. art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…”).

[61] See Sohoni, supra note 15, at 957 (“The appropriate scope of injunctive relief varies according to the case, not according to the position of the court in the judicial hierarchy.”) (original emphasis).

[62] See E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018); California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018); Texas v. United States, 787 F.3d 733, 769 (5th Cir. 2015) (denying a motion to stay a nationwide preliminary injunction or narrow its scope).

[63] Dep’t of Homeland Sec., 140 S. Ct. at 600 (Gorsuch, J., concurring)

[64] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1082–83 (2018). Class actions and third-party standing are further examples of federal courts’ constitutional authority to enjoin defendants from action against nonparties. Id. at 1084.

[65] Id. at 1082 (“the only way to alleviate the plaintiff’s injury is to require the defendant to allow all nonwhite students in the jurisdiction to attend the school”) (original emphasis).

[66] City of Chicago v. Sessions, 888 F.3d 272, 292 (7th Cir. 2018).

[67] An Act to Regulate Immigration, 22 Stat. 214 (1882) (amended 1891); see also City & Cty. of San Francisco, 408 F. Supp. 3d at 1073.

[68] See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51114 (Oct. 10, 2018).

[69] See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292 (Aug. 14, 2019) (codified at 8 C.F.R. §§ 103, 212, 213, 214, 245, and 248).

[70] City & Cty. of San Francisco, 408 F. Supp. 3d at 1074.

[71] 84 Fed. Reg. 41292.

[72] Public Charge, Immigrant Legal Resource Ctr., [] (last viewed June 21, 2020). Under the new rule, whether an immigrant is considered a “public charge” is determined by considering the totality of the circumstances and deciding whether use of public assistance indicates primary dependence on the government for subsistence. This determination is made both at the border and while an individual’s application for permanent residence (green card) is under review and can be grounds for deportation or denial of a change in status. See id.

[73] See 22 Stat. 214.

[74] City & Cty. of San Francisco, 408 F. Supp. 3d at 1084.

[75] Id. at 1086.

[76] See An Act to Regulate the Immigration of Aliens into the United States, 32 Stat. 1213 (1903) (amended 1907).

[77] Id. at 1214.

[78] See 239 U.S. 3, 8–10 (1915).

[79] Id. at 10 (citing An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens into the United States, 36 Stat. 263 (1910)).

[80] City & Cty. of San Francisco, 408 F. Supp. 3d at 1087–88.

[81] Id. at 1095–96.

[82] Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16205, 16209 (May 1, 1987) (codified at 8 C.F.R. § 245A). (“‘Public cash assistance’ means income or needs-based monetary assistance. This includes but is not limited to supplemental security income received by the alien or his immediate family members through federal, state, or local programs designed to meet subsistence levels. It does not include assistance in kind, such as food stamps, public housing, or other non-cash benefits, nor does it include work-related compensation or certain types of medical assistance (Medicare, Medicaid, emergency treatment, services to pregnant women or children under 18 years of age, or treatment in the interest of public health).”); see also Adjustment of Status for Special Agricultural Workers, 52 Fed. Reg. 16195, 16200 (May 1, 1987) (codified at 8 C.F.R. § 210)

[83] See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41295.

[84] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (emphasis added).

[85] City & Cty. of San Francisco, 408 F. Supp. 3d at 1099 (citation omitted).

[86] Acting Citizenship and Immigration Services Director Ken Cuccinelli described the rule as furthering his agency’s immigration philosophy: “Give me your tired and your poor who can stand on their own two feet,” a corruption of Emma Lazarus’s famous words on the Statue of Liberty, “Give me your tired, your poor, your huddled masses yearning to breathe free.” See Narea, supra note 1. The Northern District of California quoted the original Lazarus poem in its order enjoining DHS. City & Cty of San Francisco, 408 F. Supp. 3d at 1073.

[87] See New York, 408 F. Supp. 3d at 343–44, 351.

[88] Id. at 351; see also id. at 343–44 (“Other injuries include increased healthcare costs as noncitizen patients avoid preventative care; programmatic costs since Plaintiffs are the administrators of the public benefits implicated by the Rule; and economic harm, including $3.6 billion in ‘economic ripple effects,’ 26,000 lost jobs, and $175 million in lost tax revenue.”) (citation omitted).

[89] City & Cty. of San Francisco, 408 F. Supp. 3d at 1110–11 (“One commenter stated that a recent study found that even a five percent reduction in vaccine coverage could trigger a significant measles outbreak. . . . Another commenter stated that the rule would increase the incidence of childhood diseases like chickenpox, measles, mumps and rubella and deter parents from vaccinating their children.”).

[90] See New York, 408 F. Supp. 3d at 351 (“[T]he notice of proposed rulemaking itself acknowledged that the Rule could cause ‘[w]orse health outcomes’; ‘[i]ncreased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment’; ‘[i]ncreased prevalence of communicable diseases, including among members of the U.S. citizen population who are not vaccinated’; ‘[i]ncreases in uncompensated care in which a treatment or service is not paid for by an insurer or patient’; ‘[i]ncreased rates of poverty and housing instability’; ‘[r]educed productivity and educational attainment’; and other ‘unanticipated consequences and indirect costs.’”) (citing 83 Fed. Reg. at 51270).

[91] See City & Cty. of San Francisco, 408 F. Supp. 3d at 1105.

[92] Id. at 1108.

[93] USCIS is the agency within DHS responsible for administering the immigration system.

[94] Press Briefing of Ken Cuccinelli, Acting Director, USCIS (Aug. 12, 2019), [].

[95] Id.

[96] Id.

[97] Id.

[98] See Narea, supra note 1. “In 2016, the average per capita value of public benefits consumed by immigrants was $3,718, as compared to $6,081 among native-born Americans. Noncitizens were slightly more likely to get cash assistance, SNAP benefits and Medicaid, but far less likely to use Medicare and Social Security.” Id.

[99] See New York, 408 F. Supp. 3d at 352; Washington, 408 F. Supp. 3d at 1223­­–24.

[100] City & Cty. of San Francisco, 408 F. Supp. 3d at 1130.

[101] Id. at 1129 (citations omitted).

[102] See id. at 1129 (quoting E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019)).

[103] See Bray, supra note 14, at 461; Sohoni, supra note 15, at 957 n.235, 981. “Percolation” is the process of a novel legal question making its way through the various courts of appeals, which render their own opinions before the question is addressed finally by the Supreme Court. Nationwide injunctions thwart percolation by allowing judges from individual districts and circuits to block legal action in other district and circuit courts across the country. See Bray, supra note 14, at 420.

[104] Bray, supra note 14, at 461.

[105] Sohoni, supra note 15, at 980.

[106] Suzette M. Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. F. 56, 58 (Dec. 31, 2017), [].

[107] Id.

[108] See Griffin, supra note 27.

[109] Dep’t of Homeland Sec., 140 S. Ct. at 600 (Gorsuch, J., concurring) (citing Bray, supra note 14, at 461–62).

[110] Id. at 599 (noting that 266,000 comments were filed during the comment period); see also Complaint at 16–17, City & Cty. of San Francisco, 408 F. Supp. 3d 1057 (describing the extent to which the final rule did not adhere to notice and comment requirements and failed to address comments making the same allegations as their complaint).

[111] See, e.g., Complaint at 9–10, City & Cty. of San Francisco, 408 F. Supp. 3d 1057.

[112] Bray, supra note 14, at 475.

[113] Id. at 465.

[114] See id.

[115] Bradt & Clopton, supra note 23, at 922; see also Fed. R. Civ. P. 23(b)(2) (A class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”).

[116] See, e.g., Wal-Mart, 131 S. Ct. at 2551–52 (imposing a more rigorous standard for the Rule 23(a)(2) commonality requirement); Comcast Corp., 133 S. Ct. at 1433 (holding that a class cannot be certified under Rule 23(b)(3) if “[q]uestions of individual damages calculations will inevitably overwhelm questions common to the class”); Class Action Fairness Act of 2005, 109 Pub. L. 2, 109 Stat. 4 (2005).

[117] See Bray, supra note 14, at 475.

[118] See Bradt & Clopton, supra note 23, at 914 n.43 (“Most scholars peg the recent growth of MDL to the decline in availability of the mass tort class action.”) (citation omitted).

[119] Id. at 917, 920.

[120] Id. at 920–21 (“[T]he fact that preliminary injunctions are so central in these cases suggests that much of the legal work can be done on a thin record.”).

[121] Id. at 921 (“[A]ny change in immigration policy is not likely to result from an MDL judge ordering court-sponsored mediation or enlisting the services of a high-profile special master but from political deal making or electoral turnover.”) (citations omitted).

[122] See id. at 925 (“[O]nce the [Judicial Panel on Multidistrict Litigation] is recognized as a powerful political agent, there will be a temptation to use it politically.”).

[123] See Malveaux, supra note 106, at 62.

[124] See id.

[125] See William P. Barr, Att’y Gen., Speech to the American Law Institute on Nationwide Injunctions (May 21, 2019), [].

[126] See, e.g., Pub. Citizen, 316 F.3d 1002 (holding that the Department of Transportation acted arbitrarily and capriciously in failing to prepare an environmental impact statement as required by the National Environmental Protection Act); Texas, 86 F. Supp. 3d 591 (order enjoining the federal government from enforcing new DAPA and DACA policies against the states); Sierra Club, 2019 WL 2247689 (order granting a preliminary injunction to halt implementation of a policy “reprogramming” congressionally-approved funds for army personnel toward building a wall along the southern border with Mexico).

[127] Tessa Berenson, Inside the Trump Administration’s Fight to End Nationwide Injunctions, Time (Nov. 4, 2019), [].

[128] See Barr, supra note 125.

[129] Marbury v. Madison, 1 Cranch 137, 177 (1803).

[130] See Russell Wheeler, How Close Is President Trump to His Goal of Record-Setting Judicial Appointments?, Brookings (May 5, 2020),[]; Sara Reynolds, Trump Has Appointed Second-Most Federal Judges Through June 1 of a President’s Fourth Year, Ballotpedia News (June 3, 2020), [] (noting that Trump appointees make up 28% of circuit judges and 21% of district court judges).

[131] See Texas, 86 F. Supp. 3d 591 (order enjoining the federal government from enforcing new DAPA and DACA policies against the states).

Recommended Citation: Sarah Gallo, Public Charge: The Beginning of the End for Nationwide Injunctions?, Calif. L. Rev. Online (July 2020),

More From California Law Review Online

U.S. Settler Colonialism, White Supremacy, and the Racially Disparate Impacts of COVID-19

This Essay will connect the persistent strategies, logics, and identities created by settler colonialism to the disparate health impacts of COVID-19 in Indigenous, Black, and immigrant of color communities in the United States. By offering a framework that uncovers the root causes of ongoing patterns of systemic oppression, this Essay hopes to inspire reform efforts that seek to alter such patterns by advancing reform efforts that are grounded in truth, justice, and reconciliation. […]

Negotiating Trauma & the Law: Maybe We Won’t “Shake It Off”

But, in 2020, lawyers cannot afford to buy the myth that trauma is an aberration in the profession of otherwise Teflon-coated lawyering machines. Negotiating trauma is perhaps as old as the profession, even though we may have never given that emotional labor nomenclature or visibility, to our detriment. […]

Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans

Anti-mask laws ban the wearing of masks in public. Popularly understood to prevent Klan activity, these laws are often vague, with a history of selective enforcement. They also clash with the exhortations to wear personal protective equipment to prevent the spread of COVID-19, which by summer of 2020 was encouraged by all states and required by many. […]

Abandoning Centrality: Multidistrict Litigation After COVID-19

Courts around the country have adapted to the reality of socially distanced litigation, allowing virtual hearings and even trials to take place over the Internet. This infrastructure will outlast COVID-19 and will minimize the burden of traveling for litigation. In the face of these changes, the JPML should accordingly limit the importance of geographic centrality when choosing a forum for multidistrict litigation.