Merits and non-universality

Eric Berger (Nebraska) at Dorf on Law criticizes the Court in CASA. His critique includes this:

As the dissent points out, the Court's rejection of the universal injunction is especially bizarre in this case, given that the Executive Order is blatantly unconstitutional under just about every constitutional modality. As a matter of constitutional text, precedent, history, and longstanding practice, this is an unusually easy case (or, at least, seems to be--more on that below). The government argues that undocumented migrants are "not subject to the jurisdiction" of the United States, but the Court already rejected that argument in United States v. Wong Kim Ark. The Court, of course, could overrule Wong Kim Ark, but, in the absence of a massive change in constitutional law, it is strange that the Court would find overbroad a lower court injunction that merely says the government cannot do something that the Supreme Court has already said the government cannot do. It is even odder that the Court does not adequately address this argument.

Phrased differently, even though nationwide injunctions can often be very problematic (a point the dissent shortchanges), the Court fails to explain why such a remedy is inappropriate in this case where the President has unilaterally tried to override clear statements from both Congress (the Nationality Act of 1940) and the judiciary (Wong Kim Ark)on a point of law that has been settled for well over a century. In this respect, the Court's decision mistakenly treated this as a normal executive order, when it was anything but.  

But that should not matter. The limits on courts' remedial powers--from Article III, the 1789 Act, or some other source--mean courts cannot enjoin all enforcement of a law that the court finds constitutionally invalid. It should not matter how obviously invalid the law is or how close the merits question is; it should not matter whether the court applied century-old precedent on all fours with the challenged law or decided a question of first impression in the absence of any authority and by resort to first principles. Once the law has been declared invalid, it is (pending appellate review) invalid--degree does not matter. The question then turns to remedy to stop enforcement of that invalid law, which is where the limits on universality kick-in. And no court or scholar has suggested prior to CASA that the degree of invalidity should be a factor in the scope-of-relief question.

I am perhaps too much of a deparmentalist for my own good. But the notion that this EO is not a "normal" order because it contradicts Congress and SCOTUS precedent may combine with the SG's concession about following SCOTUS precedent to create some mischief. What can an executive do to challenge and get SCOTUS to overrule precedent? Suppose Trump had a good-faith argument that birthright citizenship is not required? Or suppose a Democratic president wants the Court to overrule Shelby County and allow pre-clearance. The only way to do that is to create litigation by enforcing some law, regulation, or EO contrary to precedent and create the litigation vehicle to make those arguments. But that runs contrary to the SG's concession (unless that concession applies only to interim decisions during litigation). And it would subject the executive to broader remedies for the efforts.