The oral argument was interesting, as there are strong arguments and legitimate concerns on both sides when it comes to the authority of district court judges to issue nationwide injunctions. Presidents before Trump hated it, and Trump does too. No president wants 680 district judges to individually possess the authority to put a stop to the president’s actions and thus thwart his agenda.

Then again, if a president engages in unlawful or unconstitutional action, must every person affected bring suit or, as Justice Jackson queried, isn’t an order to stop doing something unlawful more than sufficient for the government to stop doing something unlawful?

But that raised a question posed by Amy Coney Barrett. The colloquy between Justice Barrett and Solicitor General John Sauer was surprising, to say the least.

Barrett, appointed to the court by Trump, on Thursday asked Sauer about whether the administration “wanted to reserve its right to maybe not follow a Second Circuit precedent say, in New York, because you might disagree with the opinion?”

The “general practice” is to “respect those precedents,” but “there are circumstances when it is not a categorical practice,” Sauer said, prompting Barrett to ask if he meant he believes that is the “general practice” of only the Trump administration or the federal government.

Sauer replied that he understands it to be the “long-standing practice of the Department of Justice.”

“Really?” responded Barrett.

“That we generally, as it was phrased to me, generally respect circuit precedent but not necessarily in every case and some examples might be a situation where we’re litigating to try to get that circuit precedent overruled and so forth,” he responded.

Barrett, however, said she’s not referring to when there’s a “case from 1955 and you think it’s time to be challenged,” but how the administration acts when a circuit court rules an order is unconstitutional. Sauer said the court “generally” follows that.

“So you’re still saying generally? And you still think that it’s generally the long-standing policy of the federal government to take that approach?” she said.

He responded, “That is my understanding.”

To be clear, this may be the worst response made before the Supreme Court since Sauer argued that the president can order Seal Team 6 to assassinate their rivals. SG Sauer told the court that it is the Department of Justice’s policy to abide by the orders of circuit courts, except when it chooses not to. That’s not how it works. That’s not how any of this works.

Sauer’s contention that it’s his understanding that this is long-standing government policy is not merely nonsensical, but obviously so given that some justices served in DoJ before becoming justices of the Supreme Court. They know what the policy was, and it wasn’t obey when you feel like it. If this is policy, it is policy now, under Trump, and not some traditional policy of the DoJ.

But more importantly, Sauer said the quiet part out loud. The Trump administration will obey a court order, but only if it chooses to do so. And that will be generally the case, except when it isn’t.

While the volume of norm-breaking, law-breaking and constitution-breaking actions by the Trump organization administration continues to dwarf the available room in the news cycle, it remains that nothing has been done to facilitate the return of Abrego Garcia from El Salvador. The government has failed to provide answers to Judge Xinis or Boasberg, as ordered. The constitutional crisis is already upon us, even if talk about it has taken a back seat to $400 million dollars flying palaces and Trump’s promise to protect and defend Qatari royalty as he shuns a democratic former ally in Ukraine.

Sauer, however, has made clear to the Supreme Court that the judicial branch of government exists only to the extent the executive branch chooses to allow it to exist. The challenge has now been put to SCOTUS, much like it was when the majority accepted the premise that presidents are immune from prosecution for ordering the assassination of their rival, whether to enable and legitimize by ruling the president to ignore court orders when it feels like it. Hopefully, the Court has learned from experience, although its hardly clear that’s the case.

Update: At VC, Josh Blackman argues that what Sauer is talking about is a controversial and  judicially-unaccepted policy called “intracircuit nonacquiescence.” If so, why then didn’t Sauer say so? Inquiring minds and all.