As a matter of law, I am persuaded by the majority opinion in today’s Casa decision — the core holding of which was that “universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” (For more detail on the nature of that ruling, as well as the caveats that apply, read Dan McLaughlin.) As a matter of constitutional balance, however, I am less thrilled. This is not a contradiction. There is a difference between a court’s decision being legally correct and a court’s decision yielding perfect outcomes, and, from my perspective, this one is stronger on the first criterion than on the second. Like everyone else, I can of course see enormous upsides to a reduction in national injunctions — among them, stability, democratic accountability, and the neutering of activists wearing robes. But I can also see a good number of downsides that, unless carefully managed via immediate action from the other two branches, will hit us sooner and harder than we might imagine. Gloomy thought it may be, it is on the downsides that I wish to focus here.

Over the last century, the federal government’s lawmaking power has gradually flowed away from the legislature, where it belongs, and into the executive branch, where it does not. This, in most cases, has been the result of choices made by Congress, rather than of any formal or informal constitutional alterations. In the last few years, this problem has become dramatically worse — to the point at which, by 2022, the president of the United States, Joe Biden, was attempting to spend up to half a trillion dollars without congressional approval. Because Congress has been unwilling to exercise its prerogatives, one of the key tools that has been used to fight back against this overreach has been the nationwide injunction. It is absolutely true that, in many cases, such injunctions have been issued frivolously or cynically, with the aim of halting perfectly legal conduct. It is also absolutely true that, in a whole host of cases, they have been used to provide swift relief to those who have been harmed by the executive branch’s habitual disregard for the law.

Outside of a few contexts (Rule 23 cases, the Administrative Procedure Act, etc.), this tool has now been removed. The practical effect of this will be two-fold. First, we will see a lot more splits in the meaning of federal law — such that, until the Supreme Court chooses to weigh in, the rules might be substantially different in New York than they are in Texas. Second, presidents will have more time to act before their actions are adjudicated nationally. In such cases as those presidents are following the rules, this will be an excellent thing. In such cases as they are not following the rules, it could be terrible. An illegal vaccine mandate that is not subject to a nationwide injunction could linger in some parts of the country for months. An illegal student-loan bailout that is upheld in the Second or Third or Ninth Circuit before finally being nixed by the Supreme Court could be 200 (irreversible) billion dollars deep before it’s finally nixed. An illegal reading of the Fourteenth Amendment could yield the deportation of tens of thousands of American citizens before the government’s new-fangled interpretation is reversed. And so on.

Naturally, none of this has any bearing on the legal question that was under consideration in this case. The job of the Supreme Court is to say what the law is, and if the law does not permit the system of nationwide injunctions to which we have grown accustomed, then those nationwide injunctions must go. But, given that we all ought to wish to prevent the flowering of illegal presidential acts, it does have a bearing on the other tools that we have at our disposal.

The first of these is the legislative power itself. The most effective way to prevent presidential freelancing is to limit presidential power. That being so, Congress should get busy removing a whole host of the delegations that have accreted sine the New Deal, and, where possible, it should scratch out the reams of references to “the judgement of the president” or “the opinion of the secretary” and replace them with its own concrete terms. No law can be written tightly enough to stop a truly corrupt judge. But the better our statutes are, the less likely it is that the rank-and-file within the judiciary will defer to creative interpretations — or, indeed, that those creative interpretations will be offered up in the first place.

The second tool lies with the Supreme Court. In his concurrence, Justice Kavanaugh observed that:

It is sometimes suggested, however, that this Court should adopt a policy of presumptively denying applications for stays or injunctions—even applications involving significant new federal statutes or executive actions—regardless of which way the various lower courts have ruled. That suggestion is flawed, in my view, because it would often leave an unworkable or intolerable patchwork of federal law in place. And even in cases where there is no patchwork—for example, because an application comes to us with a single nationwide class-action injunction—what if this Court thinks the lower court’s decision is wrong? On student loan forgiveness or the Clean Power Plan or mifepristone or the travel bans, for example? Should we have a rule of presumptively denying relief, thereby allowing erroneous injunctions (or erroneous denials of injunctions) of major new statutes and executive actions to remain in place for several years, and thus severely harming the Government and would-be beneficiaries of (or regulated parties under) those new statutes and executive actions? I think not.  And this Court’s actions over the years reflect that the Court thinks not.

I hope that Kavanaugh’s colleagues agree. The obvious risk associated with a Supreme Court that claims a monopoly on national injunctions but drags its feet in their consideration is that the president will fill the vacuum, and, thanking the Court for its tardiness, create facts on the ground that render any belated litigation moot. At stake in Casa, remember, was not whether the Article III branch gets to decide what the law is, but which parts of it are allowed to make that determination. There is virtue in the Court’s delineations. There would be none in its total surrender.

The third, and final, tool is a combination of the legislative and judicial branches. Under Article III, all courts except the Supreme Court are created by — and regulated by — Congress. If Congress wishes, it can lay out exactly when and where those lower courts are permitted to issue national injunctions. Note the language in today’s holding: “universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” (Italics mine.) The Supreme Court did not find that Congress cannot grant the lower courts with the power to issue nationwide injunctions; the Supreme Court found that Congress did not grant the lower courts that power. In some circumstances, that is probably wise. But not in all. Now that the ball has been returned, Congress ought to think carefully about where it wishes to make exceptions.

Which is all to say that, by checking judicial overreach, the Supreme Court has potentially created more space for an imperial presidency that was already bloated beyond recognition. If it believes that the law required this outcome, then the Court was correct to leave its role there. We the People, however, do not have that duty — or that luxury.