A Legal Mistake at the Heart of Trump v. CASA?
It is technical, but important for future cases.
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Trump v. CASA, the universal injunctions case, appears to have a fundamental mistake at the heart of its analysis. The Court thought historical practice at the founding was relevant to its conclusion that federal courts today lack authority to issue universal injunctions. But on the Court’s own logic, the temporal focus should have been on 1875, not 1789. This mistake might have been a harmless error in CASA, but it could matter in future cases.
The Basic Point
A crucial sentence in CASA’s analysis is: “The Judiciary Act of 1789 endowed federal courts with jurisdiction over ‘all suits . . . in equity,’ §11, 1 Stat. 78, and still today, this statute ‘is what authorizes the federal courts to issue equitable remedies,’ S. Bray & E. Sherwin, Remedies 442 (4th ed. 2024).”
This was the premise for the rest of its critique of universal injunctions. The Court, quoting Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc., said that Section 11 “encompasses only those sorts of equitable remedies ‘traditionally accorded by courts of equity’ at our country’s inception.” The Court said, again quoting Grupo: “We must therefore ask whether universal injunctions are sufficiently ‘analogous’ to the relief issued “‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.’” It then concluded: “Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.”
The problem is that the founding was the wrong time to look under the Court’s logic. The Court looked to the state of equity in 1789 because it believed Section 11, in a 1789 statute, authorized equitable remedies. The problem is that neither Section 11 of the 1789 Judiciary Act, nor any other provision of that act, is the basis for federal subject matter jurisdiction for the lawsuits in CASA.
Section 11 of the 1789 Act stated in relevant part: “[T]he [lower federal] circuit courts shall have original cognizance . . . of all suits of a civil nature at common law or in equity, where [1] . . . the United States are plaintiffs, or petitioners; . . . or [2] the suit is between a citizen of the State where the suit is brought, and a citizen of another State.”
This section established federal subject matter jurisdiction in the lower courts where (1) the United States is a plaintiff or petitioner in the lower courts, or (2) it is a diversity suit. It made at least some sense to cite Section 11 in Grupo because it was a diversity case (but see discussion below). Yet in CASA the United States was not a plaintiff or a petitioner in the lower courts and the case is not in diversity.
Federal subject matter jurisdiction in CASA is based on 28 U.S.C. 1331, the federal question statute. The precursor to 28 U.S.C. 1331 was not enacted until 1875. It provided in relevant part that “the [lower federal] circuit courts of the United States shall have original cognizance . . . of all suits of a civil nature at common law or in equity, . . . arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority.” On the Court’s logic, it should have looked to the state of equity in 1875, not at the founding.
The plaintiffs in their complaints also cite 28 U.S.C 1346 as a basis for subject matter jurisdiction. That section established federal jurisdiction in specific suits against the United States. Even if Section 1346 were relevant here, which I doubt, it is not in the successor lineage of Section 11 and thus cannot save the Court’s reliance on Section 11. Section 1346 is a creature of the 1948 Judicial Code overhaul that consolidated in one section jurisdiction over claims against the government that had no conceivable basis before the last third of the 19th century. Cases over which the district courts today have concurrent original jurisdiction under Section 1346 were routinely dismissed for want of jurisdiction in the 19th century.
None of this may ultimately matter in CASA since the Court concluded that “universal injunctions were not a feature of federal-court litigation until sometime in the 20th century.” But the analysis would have looked different if the starting point were, as it should have been under the Court’s logic, 1875. And much more importantly, the 1875 baseline could make a difference in future federal question cases. Principles of equity and equitable remedies changed in nontrivial ways between 1789 and 1875, and were in flux in the post-Civil War period. Those differences might well matter in other federal question cases, and in particular might influence the future contours of Ex parte Young.
The Bigger Picture
Thus far I have argued that the Court erred when it said that Section 11 authorized equitable remedies in CASA because Section 11 did not authorize the type of jurisdiction at issue in CASA. But the Court also erred—or perhaps more accurately, uttered an anachronism, due to Erie Railroad Co. v. Tompkins—in saying that Section 11 authorized equitable remedies at all.
As Guaranty Trust Co. v. York made clear, and as other scholars have noted, courts applied equitable remedies as a form of general law at the founding, and in some guise until 1938. That meant that equitable remedies applied in 1789 and thereafter absent any positive law authorization, and would not have been deemed in 1789 to have been “authorized” by a jurisdictional statute.
The “authorization” fudge in CASA builds on a similar (but notably more ambiguous) fudge in Grupo. The fudges were required by Erie, which rejected the applicability of general law in federal courts and held that all law applied in federal courts had to have a federal or state sovereign source. Erie, in short, bars federal courts from applying law that lacks domestic authorization—even though the practice of doing so was prevalent at the founding and long thereafter.
Erie requires the Supreme Court to find some positive law hook in 2025 to “replicate” or “capture” what courts were doing in the 18th or 19th centuries. The positive law hook the Court chose, Section 11, was the wrong one because, as I explained, that statute has no relationship to CASA. I put “replicate” and “capture” in quotation marks because the application of equitable remedies in 2025 that were available as general law in 1875 (or 1789) is at best a misleading simulacrum of how law operated in 1875 (and 1789). To say otherwise is to commit several category mistakes, for reasons I began to sketch here, and will one day explain at length.
A final note. The Court has not clearly identified after Erie the proper authorization for application of equitable remedies in federal question cases. Free Enterprise Fund v. Public Company Accounting Oversight Bd. (footnote 2) asserted the power without much explanation. Armstrong v. Exceptional Child Ctr., Inc. stated: “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.”
These assertions of the power to entertain suits in equity and issue equitable remedies in federal question cases might have a number of post-Erie justifications, including structural federal common law, federal common law based on the federal question jurisdiction statute, and more. But citing Section 11 of the Judiciary Act of 1789, a diversity jurisdiction provision, as the justification for equitable remedies in a federal question case, makes little sense.