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PaperclipPerfector  5mo ago (text post)   22423 thread views

Culture War Roundup for the week of December 22, 2025

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I suspect there's some Calvinball going on here regarding the party presentation bit. Getting to the Supremes and then having them change what the argument is about (by asking for supplemental briefing on an issue which tells everyone exactly what they want to hear) is putting a heavy thumb on the scale. Plus, I'm not even sure it was necessary.

The 7th Circuit opinion is here. Page 15:

We turn next to the meaning of § 12406(3)—“unable with the regular forces to execute the laws of the United States.” The administration exhorts us to accept the Ninth Circuit’s reading of this subsection. In Newsom, the Ninth Circuit interpreted “unable” to mean that the federal government was “significantly impeded,” and “regular forces” to mean “federal officers.” 141 F.4th at 1052. The district court in this case, by contrast, concluded that the definition of “unable” is “not having sufficient power or ability; being incapable.” And it determined that “regular forces” means the soldiers and officers serving in the regular armed forces. We need not fully resolve these thorny and complex issues of statutory interpretation now, because we conclude that the administration has not met its burden under either standard.

Even applying great deference to the administration’s view of the facts, under the facts as found by the district court, there is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws. Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations against the administration’s immigration policies. And though federal officers have encountered sporadic disruptions, they have been quickly contained by local, state, and federal authorities. At the same time, immigration arrests and deportations have proceeded apace in Illinois over the past year, and the administration has been proclaiming the success of its current efforts to enforce immigration laws in the Chicago area. The administration accordingly is also unlikely to succeed on this argument.

So the 7th Circuit already said interpreting "regular forces" as "federal officers" means the government loses at this stage (arguing about a stay of the preliminary injunction, not a decision on the merits). Why the Supremes wanted to redefine the argument and specify that "regular forces" means military would really only have one goal: making it nigh-impossible for the national guard to be federalized. There's no reason to go that far if the government already loses on the most generous interpretation of the standard.

This is pretty par for the course in some places, and it doesn't necessarily have any bearing on the case. In my line of work, most attorneys just file pro forma motions without any particularized arguments. The judge doesn't read them, and nobody except counsel hears the real argument until the hearing, at which point the parties are arguing based on discussions they've had attempting to resolve the issue. The judge will often get some ideas that neither party had and ask to be briefed on the issue before he rules. But from what I can tell he doesn't necessarily buy his own arguments since he ultimately finds them lacking once they've been fleshed out. The SC would probably prefer to rule in an anticipated issue now rather than have it come up later in another case, and it makes sense that they'd give the parties a heads up so they can prepare accordingly. I'd rather they get it right the first time than make bad rulings because procedure says they have to. As a body, they aren't shy about making it clear that they can do whatever they want.

The judge will often get some ideas that neither party had and ask to be briefed on the issue before he rules. But from what I can tell he doesn't necessarily buy his own arguments since he ultimately finds them lacking once they've been fleshed out.

This is one thing for a trial judge (whether state or federal district) to do, but it's another for an appellate court, especially a secondary one. By that point, there has been extensive litigation, and lower courts have made rulings based on the presentations of the parties.

The SC would probably prefer to rule in an anticipated issue now rather than have it come up later in another case, and it makes sense that they'd give the parties a heads up so they can prepare accordingly. I'd rather they get it right the first time than make bad rulings because procedure says they have to.

There is the danger of advisory opinions, but in general I agree. Citizens United came about after a first round of oral arguments, orders for more briefing, and then more oral arguments to end up with a broad ruling, and I think that's the much better way to go.

However, the Supremes do the "ruling on the narrowest possible procedural grounds" trick all the time in other (fully-briefed, not emergency docket) cases. Roberts is the king of such opinions. Gattsuru can probably provide a laundry list of times the Court (or circuit courts) have pulled that trick in firearm cases. That's exactly what they did in Masterpiece Cakeshop and Fulton v. Philadelphia. And then there are times I swear they grant cert on cases with terrible procedural posture just so they can more easily manipulate the outcome.

Here, where it's a ruling on a stay regarding a preliminary injunction, it strikes me as especially bad to change the arguments at the highest level. There hasn't been full briefing by the parties, no amicus briefs, and no oral arguments. It's on a short timeframe with a limited record. That should be the time to stick to the exact arguments presented and issue narrow rulings.

As a body, they aren't shy about making it clear that they can do whatever they want.

We're in 100% agreement on that part.

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