Today’s news was dominated by the oral arguments at SCOTUS in Trump v. CASA, in which the administration is challenging the universal injunctions that three federal district courts have issued preventing it from implementing a new executive order re-interpreting the scope of birthright citizenship.

I had strong deja vu vibes today, taking me back a little more than a year ago to the SCOTUS oral arguments in the presidential immunity case, Trump v. U.S. For one thing, in both that case and today’s case the plaintiff was represented by the same advocate – John Sauer, who a year ago was acting as Trump’s personal attorney but today is the Solicitor General. For another, in both cases Sauer’s arguments are advancing a structural view of how the law ought to work that is somewhat contrary to the established understanding in effect for decades. And, as in last year’s case, Sauer went with a maximalist argument, opining in this case that so-called “universal injunctions” — the practice whereby a district court can enjoin the administration’s ability to implement a particular policy — are contrary to the role imagined by Article III of the Constitution for the federal judiciary, because of their impact on people who are not parties to the lawsuit.

And to be sure, universal injunctions have become far more common in recent years and, when coupled with forum-shopping, have caused great consternation among both political parties (albeit at different times). It is not unreasonable for SCOTUS to want to step in and provide some clarity on whether, and if so under what conditions, injunctions of this type are appropriate.

However this case is a somewhat odd vehicle for that intellectual debate, given that the executive order itself is in clear conflict with, per Justice Sotomayor’s reckoning today, four different SCOTUS precedents. If there is any merit in the concept of a universal injunction, it is likely in this type of situation, so as to prevent an administration from continuing to do things that are (as one of the judges below put it in this case) “blatantly unconstitutional”. Which is not to say that the administration doesn’t have the right to try and get those adverse precedents overturned; but shouldn’t they be bound by them in the interim?

The problem as many people (myself included) see it is that a world without universal injunctions appears to be a world in which an administration can choose to act in violation of the law for far longer than makes sense in a system dedicated to the rule of law. Justice Kagan today:

“Let’s just assume you’re dead wrong [on the merits]. How do we get to that result? Does every single person that iis affected by this EO have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship that is…the rule that we’ve historically applied rather than the rule that the EO would have us do?”

Indeed, Kagan later pointed out that in this particular situation, there was no guarantee that the usual adversarial system would ever generate a ruling on the merits from SCOTUS that would impose a uniform rule:

“[L]et’s assume that you lose in the lower courts pretty uniformly, as you have been losing on this issue, and that you never take this question to us. … [W]hy would you take the substantive question to us? You’re losing a bunch of cases. This guy over here, this woman over here, you know, they’ll have to be treated as citizens, but nobody else will. … [I]n a case in which the government is losing constantly, there’s nobody else who’s going to appeal; they’re winning, it’s up to you to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case. So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that? … [T]he ones who can’t afford to go to court, they’re the ones who are going to lose. … in a case like this, the government has no incentive to bring this case to the Supreme Court because it’s not really losing anything. It’s losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies.”

Sauer’s main retort is that, in many situations, it would be possible for a class of plaintiffs to be certified and for a class action lawsuit to be filed, with the outcome of the lawsuit binding both the administration and the members of the class.

Justice Jackson later picked up on this theme:

“[T]he real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a “catch me if you can” kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights. Justice Kagan says let’s assume for the purpose of this that you’re wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, et cetera. And I don’t understand how that is remotely consistent with the rule of law… [T]he court has the power to say what the law is. And so one would think that the court could say this conduct is unlawful and you have to stop doing it.”

And later, some more from Justice Jackson:

“I would think we’d want the system to move as quickly as possible to reach the merits of the issue, and maybe have this Court decide whether or not the government is entitled to do this under the law. Wouldn’t having universal injunctions actually facilitate that? It seems to me that, when the government is completely enjoined from doing the thing it wants to do, it moves quickly to appeal that to get it to the Supreme Court, and that’s actually what we would want. What I worry about is similar to what Justice Kagan points out, is that, if the government is saying no lower court can completely enjoin it, it actually means that the government just keeps on doing the purportedly unlawful thing, and it delays the ability for this Court to reach the underlying issue.”

The attorney for the one of the respondents floated a compromise solution under which SCOTUS could rule that “universal injunctions are appropriate only in facial challenges involving fundamental constitutional rights where there are real concerns about…the legal and practical availability of relief to similarly situated parties who are also going to experience irreparable harm.” It is unclear if a majority might be convinced to take that bait.

Another alternative is that SCOTUS could grant certiorari before judgment on the merits of the underlying cases, swiftly call for supplemental briefing and a second oral argument, and thereby rule on the case in an expedited fashion, not unlike how it handled TikTok v. Garland back in January. We are already two weeks after the usual end of oral arguments for the October Term, and about six weeks away from when SCOTUS usually closes up shop entirely for the summer; would the Justices have an appetite to extend its schedule, in the interests of avoiding having to resolve the universal injunctions question?

Or, of course, SCOTUS could grant the administration the relief it seeks, allowing the executive order to take effect while the lower courts continue to assess its constitutionality. However that would seemingly endorse the notion that future administrations can behave in patently unconstitutional ways while waiting for a potentially lengthy judicial process to play out: A hypothetical advanced today involved a future administration that started confiscating firearms despite SCOTUS’ 2nd Amendment jurisprudence.

The immediate path forward on Trump v. CASA remains unclear after oral argument, although it seems highly improbable that the executive order will stand in the fullness of time. How long it takes to get to that result, however, will depend on what SCOTUS decides to do.