I've written about this subject before, where I used the phrase: "Be careful what you wish for" in the opening paragraph, so I thought I'd just use it as today's headline. Previously, I had written about an effort in the Senate to introduce a bill that would remove the ability of federal judges below the level of the Supreme Court to issue nationwide (or "universal") injunctions which banned government behavior while a case was being litigated. Here's how Republican Senator Josh Hawley explained the need for the bill he intended to introduce:

What needs to happen is one of two things: Either the Supreme Court needs to intervene and make clear there's only one court that can issue rules for the whole country, that's the Supreme Court, that's why we only have one of them. [O]r, if they won't do that, Congress needs to legislate and make clear that district courts do not have the ability to issue these kinds of injunctions.

Today, the issue was indeed argued before the Supreme Court. And the conservatives on the court seemed open to perhaps limiting or removing the ability of lower-court judges to issue such universal injunctions. To which I again say: Be careful what you wish for.

This is one of those political issues where the partisans on both sides of the aisle switch their respective stances depending on which party currently controls the White House. When there's a Democrat in the Oval Office, Republicans are all for universal injunctions (especially on subjects such as abortion). When the shoe is on the other foot, Democrats welcome universal injunctions on their own issues, to rein in a Republican president.

The underlying case was not what the Supreme Court was addressing today, it's important to point out. What brought the question to the high court was Donald Trump, in the first days of his second presidential term, issuing an executive order which attempted to overturn over a century's worth of Supreme Court precedent on the Fourteenth Amendment's guarantee of "birthright citizenship" (any person born on American soil is automatically a U.S. citizen, no matter who their parents are or what their status may be).

The birthright citizenship constitutional question was barely addressed today, since the appeal the Trump administration brought wasn't on the merits of the case but rather an objection to lower judges who have all issued a nationwide halt on the implementation of Trump's new policy. It almost seems a foregone conclusion that Trump is going to lose on the constitutional question, since (as the New York Times pointed out) during the oral arguments today: "No justice expressed clear support for the legality of the order." Every lower court has ruled that Trump's policy clearly violates the Fourteenth Amendment as well. So it seems to be a case Trump is going to lose no matter what.

The big question is what happens in the meantime? It may take years for the individual cases to work their way through the federal system, so what happens while all of that is playing out? Should the Trump administration be able to implement their new policy for everyone except the people who have sued him, or should the entire policy be put on hold until a final decision is ultimately handed down?

There used to be a legal tenet that judges, when considering whether to grant injunctions in specific cases, heavily lean towards the status quo ante -- what the situation was before the new policy appeared. Which makes sense, because the parties suing the government in court cases always allege they are being harmed. If the harm is held in abeyance not only for them but also for everyone else covered, then the courts can make their decisions knowing that until they do things will remain the same -- hence, no further harm will happen while they make up their minds. However, this legal concept has become somewhat tattered of late, as the Supreme Court seems much more inclined to just rule in nakedly partisan ways without concerning itself with possible interim harms that could occur.

While the Supreme Court is not likely to rule on the merits of the Fourteenth Amendment argument, they are going to have to grapple with what will happen while these cases wend their way through the federal system. Should individual federal judges be able to issue universal injunctions, or should they be limited to injunctions which only cover the plaintiffs before them or (in the case of states suing) whole individual states? Or maybe the judges should only be able to issue injunctions for their own districts?

The problem with this scenario is that on questions of basic constitutional rights, there would be no way to prevent a president from grossly violating the Constitution except with a very piecemeal system. Thousands of identical cases would have to be brought, and in the confusion we could wind up with a situation (which was brought up today) that we haven't had since the Civil War -- where a person may have constitutional rights (citizenship itself) in one state, but have those rights disappear when they travel to another state. Which would be utter chaos, obviously. Even if the administration lost in case after case after case, it would still be free to violate the constitutional rights of everyone who hadn't yet filed their own court case, as two of the justices pointed out:

"The argument here is that the president is violating not just one, but four established Supreme Court precedents," Justice Sonia Sotomayor said, but that it may continue violating those precedents for anyone who doesn't individually bring and win a case in court.

This creates a "catch-me-if-you-can" problem, Justice Ketanji Brown Jackson said, "where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights."

There's an even deeper problem with this scenario as well, that was also pointed out during the oral arguments today. Let's say the Supreme Court rules that district judges can't issue universal injunctions, but instead limits them to injunctions which only cover certain people (those who have sued) or certain geographical areas (their own district, or a whole state which has sued). What would happen if the administration then appealed the decision and lost at the appellate court level -- but then did not file an appeal with the Supreme Court? The administration would have to accept a partial loss in an individual case, but there would be nothing stopping them from continuing to apply the new policy to everyone else in the country. Since you can't appeal a case you have won, none of the plaintiffs would be able to appeal to the Supreme Court either, which would leave the same patchwork of differing laws and policies from state to state across the country. In some states, people born on American soil could be rounded up and deported to a country they have never actually been in, while in other states they would enjoy full American citizenship. The new policy -- in a kind of "half a loaf is better than none" scenario -- would still be implemented in at least parts of the country, at least until someone successfully sued in each and every federal court district. If the Supreme Court were to be the only court which could issue nationwide injunctions, then it would create a perverse incentive for an administration to refuse to appeal any individual case to the high court when they lose.

The Supreme Court has a few other options that it appeared to consider today. Instead of them banning all district court judges from issuing universal injunctions, they could allow it only in cases which were brought as class action cases (rather than having individual plaintiffs, having instead a broad class of plaintiffs). It's more difficult to file such cases, as it involves having the "class" certified beforehand, it is worth mentioning. But that would at least allow for a class (such as "all non-citizens who may give birth in the future on American soil") to get a universal injunction which covers everyone.

Or the Supreme Court could narrow the ability of district judges to issue universal injunctions only for cases that involve basic constitutional rights. It's an open question how effective this would be, since every plaintiff would claim their basic constitutional rights were being violated, in order to qualify for a possible nationwide injunction. But it would be seen as somewhat of a compromise, even if it were legally muddy.

But again, I would caution both sides to be careful what you wish for. Democrats would do well to remember how Republicans filed all kinds of cases in friendly court districts down in Texas during the administration of Joe Biden, primarily (but not exclusively) on abortion rights. As for Republicans now urging the high court to put a stop to universal injunctions, they would do well to consider a hypothetical possibility raised in court today:

Allowing the government to deny citizenship to U.S.-born children of noncitizens while they seek individual relief from an unconstitutional act by the president is similar to requiring every individual gun owner to sue on their own if a president ordered the military to take all guns from U.S. citizens, Sotomayor argued.

Gun rights aren't the only thing conservatives cherish, it's worth pointing out. There are plenty of other constitutional questions that could be brought into play if a Democratic president decided to issue a flood of executive orders willy-nilly. In considering what you think about this particular case, it is always a good idea to consider what could happen when the political shoe is on the other foot.

-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant