<UPDATE 5/19 Just a note to draw readers' attention to the 300+ comments that this post has received. It is a good illustration of one of the things I like most about the VC - I'm not aware of another blog that can generate as intelligent and informative a conversation. Not that every comment is a gem, but the overall level of the discussion is rather remarkably high and the tone is mostly respectful. That is not always the case here; some posts dealing with controversial matters generate comments that spiral into some nasty ad hominem mud-slinging. But at its best it's much closer to good old-fashioned argument/debate, and I find I can often learn a fair bit from it.>
At oral argument Thursday in Trump v. Casa, Inc., the "nationwide injunction" case, Justice Kagan put her finger on the question that is, in my view, decisive: If district courts do not have the ability to issue "nationwide injunctions"* against executive misbehavior, i.e., if they are limited to injunctions applicable only to the specific party/ies challenging the government's actions in the cases before them, the courts cannot serve as an effective check on unlawful executive action.
*These injunctions might better be labelled "non-party injunctions" rather than "nationwide injunctions." Listening to the oral argument, it appears that what gives some Justices heartburn with respect to these injunctions is not that they operate "nationwide" (i.e., outside of the geographic district within with the court is authorized to act) but that they purport to affect the rights of non-parties.
