Is There a Remedy (in Federal Court) for Every Right?

The Implied Premise of the Universal Injunctions Argument

“[I]t is simply untenable that there must be a judicial remedy for every constitutional violation. Members of Congress and the supervising officers of the Executive Branch take the same oath to uphold the Constitution that we do, and sometimes they are left to perform that oath unreviewed, as we always are.”

Justice Scalia, Webster v. Doe, 486 U.S. 592, 613 (1988) (dissenting)

Let me start with some basics that used to be common ground in the legal academy and profession, and staples of the literature in federal courts, civil procedure and administrative law, at least before anyone had heard the name “Donald J. Trump.” It is not true that “for every right there is a remedy” — certainly not a legal remedy in the federal courts, anyway. True, Marbury v. Madison had stirringly said that "[our government] has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." And in some cases, for example in its more expansive decisions implying private causes of action or remedies thereto, the Court had quoted Blackstone’s dictum that at common law, it was “a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” But the Court had so often contradicted that principle that everyone understood it to be, at most, a kind of idealized aspiration for the system, not an operative master principle of the system.

After all, our federal judicial system recognizes sovereign immunity, the political question doctrine, separation of powers, limits on Article III jurisdiction such as “standing,” limits on causes of action in federal courts, limits on reviewability of agency action, limits on class actions, constitutional and traditional limits on equitable relief, and a myriad of other conditions, requirements, and limits. Such a system could never promise to afford a federal judicial remedy for every right, or against every supposed violation of law by the executive branch. Such limits necessarily suppose that sometimes, law-violations must go unredressed, simply because providing a federal judicial remedy for law-violations is hardly the only thing the legal system cares about.

But after the advent of Trump, especially the re-election of President Trump, everything is different, and all that is solid melts into thin air. Consider my colleague Jack Goldsmith’s entirely accurate description of the recent oral argument over the validity of universal injunctions, and the implied premises that created a dilemma for the Solicitor General:

“A prohibition on universal injunctions creates a practical problem of how courts can prevent the government from acting illegally.

If a comprehensive class action is unavailable, plaintiffs might bring hundreds of lawsuits around the country and win every one, but only the plaintiffs who sue can get relief from the illegal action. If universal injunctions are disallowed, many thousands of persons born in the United States and warranting birthright citizenship would be denied such citizenship because they cannot afford or find a lawyer. In theory, this result would be the same even if the Supreme Court declared the birthright citizenship rule unconstitutional, because even Supreme Court judgments as a general matter cannot bind nonparties.

Taken to its logical conclusion, and considered in isolation, a prohibition on universal injunctions thus means that federal courts, including the Supreme Court, cannot provide comprehensive injunctive relief to the broad array of harmed plaintiffs who cannot certify a class and who cannot individually bring lawsuits. There is no way the Court would accept this outcome—especially in a case where the government is acting blatantly illegally.”

My point is not at all that Goldsmith is wrong. On the contrary, it is that he is right, in the sense that he accurately describes the logic of the argument — the premises that structured the argument and the Solicitor General’s available strategic choices. I merely point out that the most crucial of those premises is that it is unacceptable if there are persons who cannot, practically speaking, obtain legal relief against the government in the federal courts. As Goldsmith puts it, the “practical problem” is “how courts can prevent the government from acting illegally.”¹

In the case at hand, this putative problem arises so long as three conditions are jointly present: (1) constitutional or traditional limits on equitable relief bar or at least sometimes limit universal injunctions; (2) the would-be plaintiffs as a group cannot meet the class-action requirements, perhaps because their situations are too individualized; and (3) as individuals, those would-be plaintiffs cannot all afford or find a lawyer.² Then it will be true that even though some of the would-be plaintiffs can sue for individual relief, not all will be able to do so, practically speaking. The dreadful specter of this conjunction is, on Goldsmith’s account, what induced the Solicitor General to avow that the government would at least acquiesce to the nationwide precedential effect of a Supreme Court opinion (not merely a judgment between particular parties) about the validity of a birthright citizenship ban.

I offer no criticism of the Solictor General’s decision to take that course; litigants must act within the constraints that face them, often unchosen, and their primary duty is to win the case at hand. But let us pause to notice, if only for posterity, how far the logic of the critical unspoken premise sweeps, and what a startling departure it is from the ordinary common-ground view I mentioned at the outset.

To see this, one need not agree that universal injunctions are never permissible; one must only admit that they are sometimes impermissible, a far weaker proposition than the one the government advanced. Suppose that, for whatever reason, a universal injunction is unavailable in the case at issue, under the ordinary tests and limitations on such injunctions. Then suppose that, for whatever reason, a group of persons, as such, cannot meet the class action requirements and are thus remitted to individual litigation; and that, finally, those persons cannot all afford or find a lawyer to sue for individual relief. What is the ordinary response of the legal system to this situation?

The ordinary response of the legal system is “tough luck; too bad.” That response, however brutal it may appear to some, is a simple consequence of the facts that universal injunctions are not always available, that our constitutional system does not provide a free lawyer in every civil case, and that there actually are limits on class actions. We do not take this as some sort of constitutional crisis. We do not, at least before Trump, believe that it is necessarily a problem if the courts cannot prevent any and all illegality. Rather we take it as just a necessary feature of the constitutional and legislative choice to limit jurisdiction and remedial devices, of a legal system that limits its subsidies to the legal profession, and of the very existence of limits to judicial power to right every possible legal wrong. Whatever the precise details, this general kind of situation occurs all the time. Whenever class action requirements cannot be met, individuals face the tough question whether it is worth it to sue as a sole plaintiff, whether they can even afford to do so, and whether anyone will provide them legal representation (for free).

If there are any constitutional or traditional limits on universal injunctions, and if the class-action requirements ever go unmet, and given that not everyone can have a free lawyer whenever they want — then yes, sometimes individuals with valid legal claims may not be able to vindicate them in federal court. But any sort of limit on the jurisdiction or the remedial powers of the federal courts, or indeed on public subsidies for the legal profession, necessarily implies that sometimes, the legal system will have to say: “tough luck; too bad.” In a sane world a Supreme Court argument would not be structured on the contrary premise; the rule of law is not the rule of courts. What will happen in our current world, however, is anyone’s guess.

1. Again, I do not read Goldsmith to necessarily endorse the view that this is a problem — only to recount the logic that seems to have shaped the oral argument.

2. As a digression from my main point, I very much doubt as an empirical matter that this problem would be widespread. If we have seen anything, we have seen that large sectors of the legal profession, including law school clinics, stand ready and eager to litigate against the Trump Administration pro bono, on any possible ground. But nothing in my main argument depends on the truth of this empirical conjecture.