Bush hated them. Obama and Biden too. But as Congress became increasingly paralyzed and incapable of real bipartisanship to do the people’s work, president found themselves in the position of either filling the gap by Executive Order or sitting around in the Oval counting their toes in a government incapable of doing much of anything. And so presidents reacted as the most powerful man in the world was wont to do. They grabbed their pen and phone and ran a government.

And when their efforts exceeded their authority, they were smacked with an injunction by a district court judge when someone challenged their authority to act. They hated it. But they complied with it and appealed. No more.

In Trump v. CASA, Justice Amy Coney Barrett, writing for the 6-3 majority, held that the Judiciary Act of 1789 did not empower district court judges with the equitable power to issue nationwide injunctions, and that judges were empowered to go no further than “complete relief” to the parties before them. Those dreaded nationwide injunctions of the past? Well, there won’t be any more of those, starting with the restraint on Trump’s reinvention of the Fourteenth Amendment’s long-established understanding of birthright citizenship.

It’s not that the Court decided Trump’s EO wasn’t unconstitutional, although it didn’t say it was either, but that the four district courts issuing restraining orders against Trump’s snatching babies born in hospitals in the United States and renditioning them to El Salvador in the middle of the night while the issue of the EO’s constitutionality was pending exceeded the scope of complete relief to the 22 attorneys general who sued.

In other words, New Jersey sued, so Trump was restrained from deporting babies born in New Jersey. Pennsylvania did not sue, so babies born there could be snatched. And if it turned out that Trump’s EO was unconstitutional and all of these babies were citizens, well tough huggies, kids. And if the babies born in New Jersey are driven across the Delaware Bridge, who knows if they’re citizens or not?

Makes no sense that a baby in Jersey is protected, but Philly is not? Makes no sense since these injunctions have been used for over a hundred years? Makes no sense because it is the province of the judiciary to determine whether an act of the executive violates the Constitution, and a judge should not be compelled to sit quietly by, helpless, powerless, as the executive violates the Constitution? No, it does not make sense.

It’s not that there is nothing to be done to save a baby from rendition. States can sue to cover their residents. Organizations can sue to cover their members. There are class actions available, if they meet the criteria. But these are difficult and expensive, far beyond the means of the ordinary litigant, and if an affected person doesn’t have the good fortune to live in a state that sued or be a member of an organization that sued or have the wherewithal to start a class action, that litigant is left out of the remedy. His baby is gone unless he can muster the cost of a federal suit, and get it done before ICE raids the nursery.

But why Trump? Why have so many judges issued so many universal injunctions against Trump, more than issued in the past century? The breadth and scope of Trump’s voluminous EOs far exceeded that of any other president. He hasn’t bothered with Congress. He just signs orders for whatever strikes his fancy, and the nation is expected to do as Trump commands.

But for an administration already bent on defying district court orders, the CASA decision not only sinks the nation into chaos, where some impacted by his unlawful commands will be protected while others, maybe just a town line away, will be exposed to whatever the men with guns do. And they won’t have the AG, the org, the class action, the money or the opportunity, to do anything about it. It will be chaos. It will be unequal protection. It will fly in the face of over 100 years of established legal precedent. And thanks to the Supreme Court, district court judges will be powerless to do anything about it.

The real heart of the matter here is not the technical debate about historical analogies, but a core principle of constitutional government: the state must not be allowed to engage in large-scale systematic violations of the Constitution, especially when it comes to basic constitutional rights, like the birthright citizenship rights at issue in this case. And courts must be able to impose the remedies necessary to prevent that. That principle is vastly more important than any historical details about the exact nature of remedies available British courts in 1789.

It is particularly ironic that the majority allows British precedents about remedies to undercut this principle. America fought the Revolutionary War to be free of arbitrary government power of the sort often wielded by the British monarchy. And part of the purpose of having a written Constitution (as opposed to Britain’s hodgepodge of traditions and potentially revocable statutory rights) is to impose binding constraints on government power that cannot be evaded.

The dissents by Justices Sotomayor and Jackson are unfortunately shrill and hyperbolic, distracting from those parts that accurately reflect the damage this decision will do to the judiciary’s ability to address blatantly unconstitutional actions that will certainly cause irreparable harm. That may be fine with Trump, and certainly with Stephen Miller and Pam Bondi, neither of whom seems to care a whit about constraints on whatever Trump wants to do with aliens or much of anything else in America.

And too many of the MAGA faithful embrace the simplistic “aliens bad” mentality, such that they care no more about the removal of immigrants who entered lawfully than those who came unlawfully over the border, or married a Marine or raised three sons who served in the Marines. They’re aliens, and that’s all they need to know to hate them and take comfort in their belief that they get what they deserve.

But the Supreme Court has also turned United States District Court judges into the aliens of the judiciary, who are no longer empowered to provide the equitable relief necessary to address the irreparable harm before them, reducing judges inferior to the Supreme Court to quasi-impotency and, thus, irrelevancy. It was never a choice between an imperial presidency and an imperial judiciary, but a judiciary with the authority to fulfill its purpose of preventing harm until a matter was decided. It’s not completely gone, but it’s sufficiently gone that we will be reduced to chaos, confusion and unconstrained harm.

Update: Notre Dame Prawf Sam Bray argues that the Supreme Court was correct in CASA.

In line with previous precedents, the court said that federal courts have the power to give traditional equitable remedies, which emphasize fairness and justice for the parties to the case and are based on the practice of the English Court of Chancery. The universal injunction’s relative novelty — it was invented in the 20th century, and took a star turn only in the 21st — means that it lies outside of the powers of the federal courts.

In other words, the proper scope of judicial power should focus only on the litigants before the court rather than on the law before the court. While I can appreciate the argument, I find it squishy and unpersuasive. As the president asserts powers in violation of law and Constitution, fairness and justice require remedies that address the assertion of power at issue.

While the practice of the English Court of Chancery may be interesting and informational, we revolted against England and the United States was never constrained by what courts under a king were allowed to do. After all, England had a king. We do not.