The Marshal and the Margarine

[00:00:21] [Will Baude] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:27] [Dan Epps] And I'm Dan Epps. First episode of the new year, 2026.

[00:00:32] [Will] Here we are.

[00:00:34] [Dan] Do you know what that means?

[00:00:36] [Will] Do we wear funny hats?

[00:00:39] [Dan] Maybe you do, but it means we are approaching ever closer the five-year anniversary of the creation of this show.

[00:00:48] [Will] When was our first episode? Do you remember?

[00:00:49] [Dan] I was just looking at that. It was May of 2021. May 15th, 2021.

[00:00:58] [Will] That late? I think of it as even older.

[00:01:02] [Dan] What do you think it is?

[00:01:03] [Will] I would've said we started the podcast in 2020.

[00:01:06] [Dan] Oh, okay. No, it was still pandemic period.

[00:01:09] [Will] It was a long 2020. There are a lot of things that happened in 2021 that I'm convinced must have happened in 2020 because I can't believe that it was still going on.

[00:01:15] [Dan] Yeah. So no, we came in sort of towards the tail end of that term. That wasn't our—it was sort of a half season. We've been going intermittently since then with some longer breaks. We had the break where people thought the show had ended.

[00:01:35] [Will] If the show ever does end, is that how it's going to end? Just one day?

[00:01:38] [Dan] Not with a bang, but with an empty feed.

[00:01:42] [Will] It's never going to end.

[00:01:45] [Dan] I hope not. Okay. And I think we've already talked about the Interim Docket Blog. Once, is that right?

[00:01:53] [Will] I believe so.

[00:01:54] [Dan] Okay. We've introduced that to people. So go to SCOTUSblog, Interim Docket Blog, to find our insights, such as they are, in a different medium. We haven't had too much to post about recently because it's been the holidays. And even the 24/7 interim/emergency/shadow docket has been a little calmer.

[00:02:20] [Will] A little. We have some stuff to catch up on.

[00:02:24] [Dan] Yes, we have a pre-Christmas major opinion, order, opinion relating to orders, whatever you want to call it, but nothing else that has demanded our immediate attention, I would say.

[00:02:39] [Will] Are people still mad about the title, Interim Docket?

[00:02:43] [Dan] I don't know. I haven't—probably, but no one has raised it with me. I've been a little bit more active on social media recently. I had kind of kept it blocked most of the time for some months and decided to maybe jump back into the fray a little bit. Got into it with various people and then did a thread a day or two ago, kind of responding to what I perceived to be as kind of snarky subtweeting of me and people like me.

[00:03:23] [Will] What properties do you have that cause people to get mad at you?

[00:03:27] [Dan] Apparently, the criticism was I am a law professor who is kind of not doing enough to criticize hackishness on the right. But I'm interested in policing discourse on the left.

[00:03:48] [Will] Is that true?

[00:03:49] [Dan] Which is something I do sometimes, because it's something that frustrates me in the sense that my view is it makes it harder for folks on the left to point out and criticize hackishness on the right if our side is making unpersuasive, unprincipled, bad arguments themselves. But not everyone—I think people tend to take more of an us versus them mentality. So I wrote kind of a defense/apology for the way I choose to engage with the world and sort of—some of it is about how—why I do the podcast the way that I do. I mean, you could choose to engage with the Court in a much more partisan fashion and just sort of say, it's all falling apart and it's all hackery on the right. And my view is just we should do what we can to kind of hold some center together, some space where we try to reach agreement about legal arguments and their meaning, because if we lose that completely, I think that's just the end of any possibility of any kind of rule of law. And I think it just makes things worse if judges on either side feel they are 100% solely speaking to an audience of their co-partisans. That's my view. Not everybody's view.

[00:05:30] [Will] So am I the hack in this story?

[00:05:33] [Dan] I don't think so. I think you're like the mirror image hack, right? Or non-hack, or you know.

[00:05:43] [Will] Yeah.

[00:05:44] [Dan] Right? I mean, you sort of are on the right, but then you sort of maybe you police a little bit of discourse on the right, or you're kind of contrarian on the right. I'm a little contrarian on the left.

[00:05:54] [Will] Right. I think it's probably the case that you spend a little bit more time criticizing dumb and unprincipled things on the left than I do, and I'm a little more inclined to ignore them. Although if they rise to a certain level of prominence, I do.

[00:06:11] [Dan] Yeah. I mean, maybe it's just less important, right? I mean, if you're not on the left, I mean, those arguments are not winning right now either way, right? The conservative side is winning generally, both in the legal and political sphere, whereas people on the left do face this choice, and this is related to this article by Jodi Kantor in December for which I gave comments, which is about the choice of the liberal justices. Who do you speak to in your dissents? Do you do the Kagan thing, play the inside game, try to produce narrow decisions, limit the damage, try to find consensus, or do you do the Justice Jackson thing of kind of declaring that the house is burning down and directing your efforts outside. I think that's a hard question. I think maybe it's better if some people do one and some people do the other. I've chosen one path on that.

[00:07:15] [Will] Right. I do think, I mean, there are versions of this that are present on the right too, of course. For the areas where the right is in power, you have these questions like, now that you have a majority of the Supreme Court, do you continue to apply the principles that you asked the Court to apply when you were not in a majority? Or were those principles only for losers, such that now that you're in charge, textualism's not as important, or judicial restraint's not as important, or whatnot? And I think, at least in my case, you do also see this sort of the same kind of divide in the commentariat. You see some people whose main criticisms about the Supreme Court are that it is not MAGA enough. They don't know what time it is, as people like to say. And the time apparently is the time to throw out law and put your enemies in the burning house so that they catch on fire.

[00:08:09] [Dan] Which side are you on?

[00:08:10] [Will] I'm against lighting people on fire. I'm against lighting your own house on fire. I'm against lighting other people's houses on fire. I'm a firefighter in this metaphor.

[00:08:20] [Dan] But you are also in one sense one of these people that's like, okay, forget about all this textualism and judicial restraint stuff, right?

[00:08:29] [Will] Uh...

[00:08:30] [Dan] In some ways, you have this first generation of early originalism that is about these judicial discretion-limiting doctrine and rhetoric along those lines too. And then you have this new breed, folks like you, who are saying, forget about all this text stuff.

[00:08:56] [Will] Don't forget about all the text stuff. I mean, it is true that I have never been as—I've never thought judicial restraint was the first principle of judicial interpretation. I've always thought it was a sort of secondary principle. And it is true that I think there are such things as unwritten law and that the textualism instinct may have led some people a little bit too far. That's all true. Now, I think that was just as—I thought it was just as true. I don't think whether that's true or not depends on who controls the Court. I guess I'll say that. But yeah.

[00:09:32] [Dan] So related to that, I think you've read this article that Jack Goldsmith, co-blogger, and your colleague, Curt Bradley, put up on SSRN earlier this week, General Law Revivalism and the Problem of 1938.

[00:09:49] [Will] Yeah.

[00:09:50] [Dan] Super, super interesting. Sort of taking aim at you and Steve Sachs and Jud Campbell and sort of the larger group of people trying to resurrect general law. I'm sort of in there indirectly, although the work that I've done about general law is kind of a little bit—it's not really originalist, and it's more sort of instrumental in maybe talking about something slightly different than what you guys are talking about.

[00:10:15] [Will] Yeah.

[00:10:15] [Dan] But basically, Bradley and Goldsmith's point is that—I think it's more of a pragmatic point, right? That we got rid of general law, right? This idea that judges were just kind of applying this set of principles that wasn't necessarily derived from any one sovereign. We got rid of that for a reason, right? It was not working well in the 19th century, and then having gotten rid of it, we've completely reoriented the system of constitutional law, civil procedure, federal courts, doctrines over and over. They've all been regrounded in a totally different source. If we actually got rid of Erie, the Erie doctrine, which I think maybe you're excited about getting rid of, it would just create this incredible mess.

[00:11:06] [Will] I mean, I love this article. I've seen it workshopped at Chicago now twice, once by Curt and once by Jack. And it contains, in a way, three different propositions, one and a half of which I vigorously agree with. So one proposition is just that anytime you're thinking about old law, like pre-Erie law, you have to do what they call the Erie algorithm to figure out what kind of law it became post-Erie. There are just tons of law that used to be general law that now the general law's not a box you can put law in anymore.

[00:11:35] [Dan] You kind of have to reroute it, find a new home for it.

[00:11:38] [Will] Some of it becomes state law, some becomes federal common law, some becomes constitutional law. I think that's totally correct. A second claim is that people forget, and in particular, Steve and Jud and I and others have sort of maybe misled people about how bad the general law regime was. We got rid of that. The Erie algorithm exists for a reason. I disagree with that, of course. And the third is that just sort of people may not realize how widespread the consequences of returning to general law would be, how far-reaching the algorithm is. And that's the half, I kind of agree, people may not realize how widespread that would be. And indeed, if—

[00:12:20] [Dan] Do you like that?

[00:12:21] [Will] Well, I think we could debate exactly how widespread it would be, in how many places would the doctrine kind of be functionally the same but conceptually different. I think it just might be very complicated to work it out. Upon seeing this article presented, I renewed my resolve to try to get one of my frequent co-authors to write a book about all this sooner rather than later. It's complicated. But part of the problem is that indeed courts are not as attentive to the Erie algorithm as maybe Bradley and Goldsmith are. There are tons of areas where courts sort of forget that the law they're applying was once general law. You think of things like Bivens.

[00:12:58] [Dan] And not clearly putting it in a box the way they're supposed to now.

[00:13:00] [Will] Well, take an area like Bivens. So the Court, the current box for causes of action against federal officers for violating constitutional rights is implied cause of action under the Constitution. And then the Court has this formalist originalist instinct that's like, ooh, implied cause of action under the Constitution, that's a kind of bad box. We shouldn't put a lot of things in that box. Which is fine as far as it goes, except that most things in that box were supposed to be in a different box, the general law box. That having killed that box, we've now kind of moved things over to the other box.

[00:13:35] [Dan] It created big problems over there.

[00:13:36] [Will] Right. Well, so if you forget the Erie algorithm, you're just like, oh, Bivens, okay, that sounds kind of made up, so we probably shouldn't have these causes of action for judicial restraint reasons. But then we used to have the causes of action in general law, but the Court also got rid of those under Erie for non-originalist reasons. And if you get rid of the original law through a non-originalist decision like Erie, but then get rid of the new version of the law for originalist reasons, you have a kind of originalist shell game where the law just goes away entirely.

[00:14:07] [Dan] That seems bad.

[00:14:08] [Will] That seems bad. And that's the parts of the article where it's like, look, this might really change the law of remedies against federal officers. That's the part where I was like, don't threaten me with a good time. It's true. There are some areas of law that have gotten sort of messed up because of this. And I'm not sure how bad it is. My other favorite thing about the article really is just that the article seems to regard general law revivalism as a real threat. I think the target audience of this article is judges who might be tempted to start buying into this general law stuff. And I think it's designed to warn them, this is a big Pandora's box. They make it sound kind of reasonable, but it's actually a really big Pandora's box and you should keep it shut. And I was kind of delighted to see that the general law revivalism is this threatening. You know the old joke about the 90-year-old Holocaust survivor who only reads neo-Nazi newspapers and just constantly smiling and laughing at them? And his friends are like, why do you read these neo-Nazi newspapers? And he's like, ah, every time I read it, it's about the Jews are in charge of this and the Jews are in charge of this. It's just full of all this good news. I'm not suggesting that the article is a neo-Nazi article or that I'm a Holocaust survivor, but I do enjoy the good news that the general law is dangerous.

[00:15:31] [Dan] Well, maybe that does suggest there's a little bit of jeopardy to those doctrines that you dislike.

[00:15:38] [Will] So here's the question is, do you think that any of the current justices are at some point going to say that Erie was wrongly decided?

[00:15:48] [Dan] I could see that in kind of a Justice Thomas concurrence in the judgment.

[00:15:53] [Will] And then is it Justice Thomas is the most likely?

[00:15:56] [Dan] Or Gorsuch.

[00:15:57] [Will] Yeah.

[00:15:58] [Dan] One of those two. I mean, maybe Justice Thomas is too of the prior generation, right? As the article points out several times, Justice Scalia was a big Erie defender.

[00:16:12] [Will] Yes.

[00:16:13] [Dan] Right. I mean, I tend to think that we don't necessarily need to see them getting rid of Erie, but you could see more willingness to invoke kind of general law-ish principles in distinct and discrete areas, right? That was sort of the instinct behind my and Danielle's Fourth Amendment article, which is, look, you don't have to be a completely upset the legal system, but maybe there are these areas where the Court is doing some interpretation, and it doesn't quite know how to do it. Maybe this gives them a little bit more of a hook. That seems plausible to me.

[00:16:57] [Will] Yeah, I agree. And again, I think if the Court would just even be more explicit and attentive to—even if the Court says, it's true, there used to be a lot of general law, but we got rid of it in an area, and we're never going back. But if they would just be more attentive to the consequences of that non-originalist choice consistently, so they'd say, ah, there used to be implied remedies against, for federal statutes under general law, and then explain how that affects their thinking about their own implied remedies jurisprudence.

[00:17:28] [Dan] Yeah, or the Fourth Amendment exclusionary rule. We had that, and then we had the Westfall Act and all these things, and now you can't sue, and what do you do?

[00:17:36] [Will] And again, you could say, look, we used to have general law rules of evidence, but now the federal rules of evidence have displaced them, And the federal statute has displaced them. And so—

[00:17:44] [Dan] Although don't the Federal Rules of Evidence have a carve-out for the common law?

[00:17:50] [Will] Sort of. That's what I mean is you could work that out. There's a federal statute, the federal statute that was supposed to overrule Miranda says some things like confessions should never be excluded unless it's required by positive law. That's what I mean is it could be that you end up in a lot of the same place. Maybe. But if we're going to keep a kind of non-originalist system with a bunch of originalist judges, then I do think it would behoove them to keep their eye on the ball.

[00:18:21] [Dan] Makes sense. Okay. Well, for those who are interested in getting deep into these procedural and jurisprudential and constitutional weeds, we recommend that article, General Law Revivalism and the Problem of 1938.

[00:18:38] [Will] 379 downloads on SSRN as of the time of recording. I suspect our listeners will drive it up to 385.

[00:18:46] [Dan] It's good. I don't think it's going to approach the Section Three article.

[00:18:51] [Will] No, it's going to exceed it, I hope.

[00:18:55] [Dan] Okay. Other odds and ends? Anything you were thinking about over the holidays?

[00:19:04] [Will] I've mostly been thinking about getting my grades in.

[00:19:08] [Dan] You haven't done that yet?

[00:19:09] [Will] They're in. They're in now.

[00:19:11] [Dan] Okay, good. I got them in too. What is the motto on your sweatshirt now? This is a new recurring theme where I kind of ask you. Oh, it's another anti-qualified immunity. Where'd you get that one?

[00:19:23] [Will] Americans Against Qualified Immunity.

[00:19:25] [Dan] Is that a real organization?

[00:19:26] [Will] Yeah.

[00:19:29] [Dan] Where is it? Who started it?

[00:19:30] [Will] I don't know.

[00:19:31] [Dan] Where'd you get the shirt? Someone sent it to you?

[00:19:33] [Will] I bought it online.

[00:19:34] [Dan] Oh, you had to buy it. I feel like you should be entitled to a free one, right?

[00:19:39] [Will] I think they were sold as a fundraiser. I think the organization is connected to the Institute for Justice, which does a lot of anti-qualified immunity and accountability things. So I saw they were raising money for a good cause and I wanted it. Did I text this to you? I was at the airport over the break wearing the sweatshirt. And sort of forgot that I was wearing it. And a TSA agent was just walking by as I was in the security line, and then came up to me and kind of punched me in the arm and chuckled. And I looked at him—

[00:20:14] [Dan] Actually physically made contact with you?

[00:20:16] [Will] Gently, yeah. Like a brotherly nudge.

[00:20:21] [Dan] You don't think that—that seems a little menacing to me.

[00:20:23] [Will] Well, he was smiling. And as I said, I forgot that I was wearing the sweatshirt. And then he was like, "dope hoodie, man." So then it clocked for a second, and I was like, oh, okay. And then he said, "but then how would they get away with the crimes?" And just started laughing and laughing and walked off.

[00:20:44] [Dan] Do you think he understood what you were saying?

[00:20:46] [Will] Oh, definitely.

[00:20:46] [Dan] On the sweatshirt?

[00:20:47] [Will] Actually, I think, but then how would they get away with the crimes really encapsulates both the pro and con argument for qualified immunity. Obviously works in a law enforcement or law enforcement adjacent area and is aware that there are enough arguably unconstitutional behaviors by officials on a daily basis that accountability for it would be a change.

[00:21:13] [Dan] Yeah. Well, I mean, this is an important moment to be thinking about that. I think two days before our recording session, an ICE agent shot Renée Good in Minneapolis, in an encounter that seems very, very disturbing. I think based on what I've seen so far, it seems like the spin the administration is trying to put on it is false and frankly disturbing. But it also seems like a situation where the officer is unlikely to face any legal consequences.

[00:21:54] [Will] Do you have a view of whether the officer could be prosecuted under state law? Twitter law professors are all in on this.

[00:22:00] [Dan] Yeah. So it seems like yes, but then the action—okay, I mean, maybe, but then the action would be removed to federal court. Is that sort of where we've landed on that?

[00:22:12] [Will] So definitely—

[00:22:13] [Dan] It might be preempted entirely, but if not, it would be removable to federal court, which is an unusual thing, right? We don't allow state criminal prosecutions in federal court very often.

[00:22:27] [Will] Right. Yeah. So any federal officer—federal officers can sometimes be prosecuted for state law, and when they are, they can remove it to federal court. So you have these state prosecutors proceeding in federal court in front of a federal jury. There are four—

[00:22:42] [Dan] Which is weird.

[00:22:43] [Will] It's very weird. There are four cases from 1880 to 1920 where the Supreme Court delineates the bounds of what kind of immunity those federal officers have. The most famous of which is In re Neagle, a case where a federal marshal shoots somebody who's trying to assassinate—trying to shoot a Supreme Court justice on a train in California, and he gets immunity because he was performing his duties. There's one involving somebody who runs a federal boarding house and sells margarine without advertising, without labeling it, who also gets immunity because federal boarding houses are—

[00:23:15] [Dan] What's a federal boarding house?

[00:23:17] [Will] It's for veterans or something. I forget. But there's one involving people in the Army who shoot, I think, a deserter or somebody, who they say was running away, but then other witnesses say actually the guy was not running away and had stopped to put his hands up. And the Court said, well, there's a factual dispute, and if he did stop and put his hands up, he can be prosecuted. And so all the modern courts of appeals cases about this are kind of like, well, what's the principle that unites the marshal and the margarine on one side and the deserter on the other side?

[00:23:48] [Dan] Yeah. I mean, obviously a state couldn't just say, it is now a crime in Minnesota to enforce immigration law. There's no way.

[00:23:54] [Will] It's clear that Congress could preempt state criminal prosecutions against people actually doing their jobs. The question is if you act, do something you shouldn't do, and that you're not required to do by federal law, when does state law kick in? The margarine case is actually, I think, sort of the best one for immunity in that the state law just said, you can sell margarine if you want to, but you have to prominently advertise that it's margarine. And federal law just said, you can or must use margarine in running the boarding house or whatever. So you easily could have complied with both. You could have said, oh, okay, we're supposed to serve margarine and prominently label it. But the Supreme Court held that the federal right to serve margarine preempted even the state duty to label it. But still, you can't shoot deserters in the back. So the most prominent of these cases is a case from the 2000, 2001, just I guess when we were in college-ish, where the state of Idaho prosecuted the Ruby Ridge sniper in federal court. And I think the federal district court tried to dismiss the charges on immunity grounds. And then the en banc Ninth Circuit held the charges could go forward and parsed these cases and said, look, if the facts are what the state claims it's going to prove at trial, there's no immunity. You would've acted unreasonably. And then the whole decision was vacated, I think. The state tried to take it to super duper en banc, and at that point the whole thing settled.

[00:25:27] [Dan] But it's kind of—what was the resolution?

[00:25:29] [Will] I think the charges were ultimately dropped. And I don't know if the charges were dropped in some sort of bargain or just dropped because the state had proved its point, or I don't know why exactly. But there's not a ton of caselaw on it.

[00:25:45] [Dan] Yeah. Some people on social media were freaking out because they sort of thought, they said like, oh, this can be removed to federal court and then Trump can pardon the officer. I don't think that that's correct.

[00:25:57] [Will] Right. No, it stays a state charge. And it stays prosecuted by state officials. So it moved to federal court, but it's not that federal prosecutors—it's not like there'd be federal prosecutors in charge of it who could be ordered to drop the charges or something. It would just be essentially a diversity case. I mean, I guess it's technically a federal question case. The reason it's in federal court is a federal defense, but it would just be in front of the District of Minnesota and then the Eighth Circuit and then the U.S. Supreme Court.

[00:26:27] [Dan] To the extent that happens, I'd imagine it will take quite some time to trickle up through the legal system. Although you could totally imagine this being the subject of interim orders, right?

[00:26:39] [Will] Yes. I assume there would be an interim order resolving the 100-year-old doctrinal dilemma about the scope of Supremacy Clause immunity in a matter of hours, days. I'm not sure what it would say, but I assume there'd be something.

[00:26:57] [Dan] Well, we will see what happens. Okay, so the one thing we actually wanted to talk about, Trump versus Illinois. This is the National Guard decision about which I've blogged a bit on the Interim Docket Blog, controversially named. We're a little late. We were tied up with the holidays. So this came down December 23rd, 2025. So about three weeks ago, two, two and a half.

[00:27:34] [Will] Ice cold takes.

[00:27:36] [Dan] Yeah, at least on their way to freezing.

[00:27:39] [Will] Right. Now in our defense, we were not as late as the Supreme Court was in deciding this order, right?

[00:27:49] [Dan] Yeah, so the application in this case, which was filed by the government, and it was seeking a stay of lower court decisions that had—a district court decision that had barred the president from calling out the National Guard in Chicago. The government was seeking to stay that decision. Application seeking that relief was filed October 17th of last year, and then it becomes fully briefed later in the month of October. The Court asked for supplemental briefing to be filed sort of by mid-November. That supplemental briefing was completed November 17th, and then more than a month later, we finally get the decision from the Court.

[00:28:46] [Will] Right.

[00:28:47] [Dan] This is a decision refusing to stay—so it's a decision against the government, refusing to stay lower court decision barring the president from calling out the National Guard. And so in that situation, you can sort of see in retrospect why the Court wasn't feeling any need to rush, right? Because the Court's order was not going to change anything. The Court was just going to say the thing that's in place can stay in place.

[00:29:13] [Will] And importantly, the Court had denied that administrative stay while this was pending.

[00:29:17] [Dan] Yes. So like an interim administrative stay is like an interim-interim order.

[00:29:22] [Will] Right. So when the Court denied an interim stay and then asked for briefing on this long timeline, I think many of us kind of thought, oh, all right, I guess the government's going to lose this one eventually.

[00:29:32] [Dan] Yeah.

[00:29:33] [Will] And we'll just eventually learn why. I mean, it's not inevitable. You could imagine something else would happen. But yeah, it took a while. It was on the slow track.

[00:29:45] [Dan] But I mean, it is a good example of the argument that we've discussed, why emergency docket is perhaps not the right name for this box, this kind of slice of the Court's work.

[00:30:02] [Will] Yes. It's also a good example—apologies for plugging something that's hard to read, but I had an essay come out earlier this week in the journal Liberties, which is a journal run by Leon Wieseltier, who used to run the back of the book at The New Republic. It's a general interest journal.

[00:30:20] [Dan] Yeah, but he was scandalously fired, but he's back.

[00:30:27] [Will] He's back. He's running a really great journal for anybody who wants serious intellectual print publications or small-L liberalism to survive. Highly recommend it.

[00:30:39] [Dan] But it's hard to read?

[00:30:40] [Will] Well, you can't just read all the articles for free online. I think you can read some online with your email address, and I think I can post a copy of the article after 60 days or something, but I actually get a print journal that contains—

[00:30:52] [Dan] I sort of thought you meant it was hard to read because it was badly written or something.

[00:30:56] [Will] No, no. It requires you to actually expend a small amount of effort to obtain printed words on a page, or you can read it online if you're subscribed. But anyway, it's about the legacy of Marbury. And one of the things I talk about is the emergency docket question and what is going on with the emergency docket and the possibility that the Court is in some way preserving its—that throughout the end of last year, the Court was in some way intentionally preserving its political capital, not unlike John Marshall is suspected to have done in Marbury, with the thought that it might have to use it later. Right. And so that maybe the National Guard decision makes us think a little differently about the other National Guard decision. We can talk about that in a minute. I mean, you could still criticize Perdomo as we have, but I think seeing these as a package makes it seem less like the Supreme Court is totally afraid of the Trump administration and wants to let them do everything and more like something more nuanced is going on. Again, that we can critique or understand, but something more complicated is going on.

[00:32:00] [Dan] Yeah. And if you'll permit me a brief detour, and we will get back to our main topic of discussion, but the reason that we had this particular recording session scheduled at this time was because the Court had announced it was going to issue decisions on Friday morning, and everyone panicked and assumed that if they're going to do it on a Friday, must be something huge, must be the tariffs case. As I understand it, the Solicitor General and his staff were all in the courtroom this morning geared up to hear the tariffs decision, and then the Court decided, issued one opinion in a case that actually seems kind of interesting to us because complicated procedural stuff, but not by any stretch of the imagination the case that people were waiting for.

[00:32:55] [Will] Yeah. I saw it reported also that apparently Justice Sotomayor even made a joke about that.

[00:32:59] [Dan] Yeah.

[00:33:00] [Will] It's like, like, looking around the courtroom, seeing who's here, it's not the case you thought.

[00:33:06] [Dan] But so I was thinking of that just because you're saying, well, maybe the Court is conserving political capital. I think that's quite plausible. And I think that we're not going to be able to evaluate whether the Court has totally rolled over for Trump or is doing something more complicated until, at the very least, the end of this term, and quite possibly until the end of the Trump administration. But I mean, that is a case, I think, one where people think it's maybe one of the more likely places where the Court might say the administration is wrong.

[00:33:44] [Will] Yeah. I'd say that's one of the ones on the bubble. I think birthright citizenship is high on the list, but it's one of the ones that at least—

[00:33:55] [Dan] What's higher on the list? Than tariffs, other than birthright.

[00:34:00] [Will] I think a lot of people might put the firing of Lisa Cook higher on the list than tariffs. I'm not sure actually where I'd put the two. Those are both cases—

[00:34:09] [Dan] Alien Enemies Act, when they get to that.

[00:34:12] [Will] Well, actually the Alien Enemies Act, it turns out the Trump administration had a secret strategy to make the Alien Enemies Act thing work by declaring illegal war on Venezuela.

[00:34:20] [Dan] Yeah, good point.

[00:34:22] [Will] Now actually, I think it doesn't work because the Alien Enemies Act actually says it has to be either a declared war or a predatory incursion against the United States. So an illegally undeclared war against Venezuela is not enough. But if we piss them off—

[00:34:35] [Dan] Where we make the incursion into their country.

[00:34:38] [Will] Right. But if we piss them off enough, they actually declare war in response, then suddenly the Alien Enemies Act thing becomes legit. So it's all three-dimensional chess.

[00:34:48] [Dan] Okay. That's interesting. Okay. So this case, Trump v. Illinois, is this part of that separate multidimensional chess game, not by the administration, but by the Court.

[00:35:01] [Will] So maybe. And let's—I guess we talk about what it says, but I was going to say the opinion says more than it has to. It both rules against the Trump administration on a big thing, and it says more than it has to about why they lose.

[00:35:15] [Dan] I think significantly more, right?

[00:35:17] [Will] Yeah. Well, yeah. I mean, it says more about some things, and we can go through it. One other thing, since we just talked about the timing, just as a loose end, you also could have, I think at this point, decided the case was kind of moot. The National Guard is not—the administration doesn't even want the National Guard to come in Illinois anymore. They're already like—ICE has moved on. I mean, maybe they bring them back. And the original order and appeal was from a 14-day injunction that has expired, that only was extended because the administration asked for it to be extended.

[00:35:53] [Will] I think to preserve—

[00:35:54] [Dan] To maintain the possibility of review.

[00:35:56] [Will] They had some other reason for asking to extend it, but I think that was the actual reason. So you could have said a while ago, unclean hands. If you ask for the injunction against it to be extended in district court, you can't then come to us on an emergency basis and say it has to be rolled back. And that is a sort of underappreciated loss, I think, about the growth of the interim docket. It's just like, back in the old days, a lot of these things would've just kind of gone away in time.

[00:36:23] [Dan] Yeah. I assume the administration thought it had a decent chance of winning and wanted to get that victory in its pocket, right?

[00:36:32] [Will] Yeah. And I assume the Court may have wanted to say some things to the contrary and send a message about the use of National Guard for all sorts of purposes over the course of the next several years. Including but not limited to the 2026 election.

[00:36:47] [Dan] Yeah. I mean, this raises a kind of strategic question for me, which is on the one hand, so everyone has—people who have been trying to respond to the criticism of the Court that it's in Trump's pocket, they sort of say, well, the SG's office has done a good job of picking winners and getting them to the Court. That might be true, but what are the incentives? I mean, I guess I would sort of think if you're the SG's office, shouldn't the incentive be to bring everything? To bring everything, and even the outrageous stuff, and on the assumption that the Court is not going to rule against you on everything, and the more you push the envelope, the more likely it is that you win on the kind of medium stuff. Whereas if you just bring the medium stuff and the kind of slam dunk cases, maybe the Court splits the difference in a different spot. Does that make sense?

[00:37:46] [Will] It does, but I think it's not at all clear. This is the problem is everybody knows about the idea of moving the Overton window, or moving things on the wall. But I think if you ask Overton, it's not the case that the more stuff you say, the more you always move things directionally in your direction. Sometimes you make radical arguments and actually it causes you to lose credibility or lose a special status.

[00:38:14] [Dan] Yeah.

[00:38:15] [Will] Or right now, I think it's the case that just procedurally, when the United States asks for interim relief, it gets a more thorough hearing on the discretionary factors of like, should we think about this? And if it were the case that the United States asked for interim relief 300 times a year rather than 50 times a year, that might not be true anymore.

[00:38:36] [Dan] Yeah, that's true. Although, I mean, I think if the administration takes 20 really, really aggressive legal positions, as a matter of just kind of realism, you might think the Supreme Court is not going to feel comfortable saying that the administration is wrong 20 times.

[00:38:54] [Will] You might.

[00:38:55] [Dan] Right.

[00:38:56] [Will] You might. But again, it might be the other way around. It might be that once you said the administration is wrong like five times and the world didn't end, it was fine, then you're kind of freed. You realize you can say it again. You realize it's just kind of fun to say it. It's just not obvious to me either way. It's a complicated institutional psychological question. Yeah. And the SG's office also has a question about its own status, I think, within the administration. So I think early on, maybe this is still true, maybe not, you might've thought there were competing forces in the White House. There were the law people who thought we should play inside the system, and there were the burn the house down people who thought, let's just ignore the courts and do whatever we want.

[00:39:39] [Dan] Yeah.

[00:39:40] [Will] And it's in the SG's office's interest to show they can get results inside the tent. So it might be bad for the SG's office to bring cases to the Court and lose them. Thus emboldening the anti-SG's office forces in the White House, who then will say, just kill all the lawyers and have ICE take over the country, or whatever. So it's very confusing. Should we tell people what this opinion said?

[00:40:09] [Dan] Yeah, to the extent that it said stuff. It does, for its length, which is two and two-thirds pages, it actually does say a fair bit in terms of the law.

[00:40:23] [Will] Yeah.

[00:40:25] [Dan] Right? This is a meatier kind of interim decision. So can we walk people through it? I mean, I guess one thing just to set it up is the Court is going to decide this case on the basis of a legal argument that had not been directly raised by the parties. Instead, it was raised in an amicus brief by Marty Lederman, and it was then the subject of the Court's request for additional briefing. So that was when we sort of thought, okay, the Court seems to want more.

[00:40:55] [Will] And it was though one of the bases of the district court decision under review. So it's not like the Court injected something totally. It's like this was one of the district court's reasons for ruling against the administration. But yes. Okay. 10 U.S.C. 12406(3), which is the statute the president uses to call out the National Guard in these cases, and also what he used in Oregon and maybe one other. 10 U.S.C. 12406(3) lets the president federalize the National Guard if he is unable with the regular forces to execute the laws of the United States. And since calling out the militia is a power of Congress and the National Guard is sort of the militia, the president needs congressional authorization to be able to federalize the National Guard and call them out. So the question is, was he unable with the regular forces to execute the laws of the United States? The president had made a determination that regular law enforcement was not executing the laws, and so he needed to call out the National Guard. And the Seventh Circuit and the Ninth Circuit split on whether that was true and what the standard of review is and whether they could second-guess it. What the Court says as step one, and this is the Marty Lederman argument, is that actually everybody's been confused about how to read this statute, and that regular forces doesn't mean regular law enforcement. It means the regular military forces. The regular forces of the United States are its regular armed forces. And there's a ton of contemporary dictionary evidence, other textual phrases, et cetera, that support this. And the statute was enacted 100-some years ago. And so that's move one, is to say regular forces actually means the military. So the president actually has to determine that he can't—he's unable with the military, like the Army or the Navy.

[00:42:43] [Dan] So not unable with ICE or the FBI or whatever.

[00:42:48] [Will] Right. And so that's step one, which again was one of the things the district court had said, but it's not what the parties had focused on until Marty Lederman pointed this out and the Court called for briefing. But that's step one. Now then, this is something the justices disagree about, of course, but it's—you could conceivably stop there, but then the obvious next question is, well, what does that determination look like? What do you mean unable with the military? Can he even use the military to execute the laws of the United States? What is this inquiry? And that runs you into another statute, the Posse Comitatus Act, which says in general, the president is not allowed to use the military to execute the laws of the United States unless Congress says so, or there's an insurrection, or things like that.

[00:43:35] [Dan] Conditions that are likely not satisfied here.

[00:43:38] [Will] Well, we haven't gotten there yet. But the first question is just how does unable interact with the Posse Comitatus Act? One view, I think would be the government's view, would be, well, we are unable. If you ask, we are unable to use the military to execute the laws of the United States because federal law forbids us from using the military to execute the laws of the United States. So we've got to use the National Guard. The other view, which is what the Court says, is, unable—that's not what unable means. If unable meant that, then the statute would be kind of a weird end-run around the Posse Comitatus Act. It would say, by forbidding the president from using the army, we therefore automatically allowed him to use the militia. And that's not what we mean. We mean unable in the sense of, we might otherwise be allowed to, but we can't do it. Then there are other questions. I think there's one other question that the Court does reach. Which is, well, can we use Article II instead? Can we use what is sometimes called the protective power? I think also deriving from In re Neagle, the marshal shooting case, to just say, well, forget the statute, but as a matter of Article II, there's an ICE facility in Illinois and we want to put some more federal employees near it to keep an eye on it. And that's not enforcing the laws, that's just like—moving federal personnel around to protect federal persons or property. And the Court says, well, maybe you can do that, but it's not enforcing the laws because the government, to get around the Posse Comitatus Act, has to take the view that that's not executing the laws. And they cite the government's own briefs and OLC opinions. And therefore, it can't be executing the laws for the purposes of 12406 if it's not executing the laws for purposes of the Posse Comitatus Act. And then the Court doesn't have to decide a bunch more questions like, well, is there some other exception to the Posse Comitatus Act we could use? Like there's an insurrection in Illinois or a rebellion in Illinois. What is an insurrection or rebellion? They also don't decide whether they can exercise judicial review over the findings made by the president under 12406 or any other statute. So I take it they're not deciding. If the president did make an inability finding, whether they could review it, but they decided a lot.

[00:45:53] [Dan] And so just so I'm understanding and people are understanding, this is part of the opinion I found a little confusing. So they're not clearly answering the Article II question, right?

[00:46:08] [Will] Right.

[00:46:09] [Dan] They're sort of saying the president relies on inherent constitutional authority that, according to the government, allows him to use the military to protect federal personnel and property. But then that's not executing the laws under the Posse Comitatus Act. The government says that, therefore it's not executing—that doesn't work for purposes of 12406(3).

[00:46:33] [Will] Right. But I don't think they decide, could he go—basically, can he go around 12406(3). The whole case is framed around all the president's claiming here is that 12406 allows him to use the guard, federalize the guard.

[00:46:47] [Dan] Yeah.

[00:46:48] [Will] And we conclude that he's probably wrong about that. Now, do other statutes let him federalize the Guard? Does the Constitution let him federalize the Guard? That's where they don't. I think they would be skeptical though of the—I think on the Article II point, as I understand this, which is not well, the Article II argument is mostly an argument about how the president can move the—use military forces that are under his command.

[00:47:14] [Dan] Like the actual military, not the National Guard.

[00:47:16] [Will] Well, whoever he's in command of. And Article II says the president is the Commander in Chief of the Army, the Navy, and the militia when it is federalized. But Congress controls when it's federalized. So I think under the Article II argument, the president can only use the military. He can't himself federalize the militia.

[00:47:37] [Dan] As a matter of constitutional authority, he would have to federalize it according to statute before he could invoke that.

[00:47:43] [Will] Right. There is also this end run sometimes where a state tries to send the president the militia. This also happened briefly in Illinois where Texas was like, it's fine, you don't have to federalize it. We'll give you the militia. The Texas National Guard is happy to go to Illinois and cause trouble, which I don't think works, but has been done in the past.

[00:48:02] [Dan] Just get some Chicago dogs.

[00:48:03] [Will] Yeah. Well, there is this—it might be that the posture of the case also just changed because of winter. Like ICE?

[00:48:14] [Dan] People don't want to be in your home city.

[00:48:17] [Will] ICE left when it got cold. They moved down to Memphis and New Orleans.

[00:48:21] [Dan] But now they're in Minneapolis.

[00:48:24] [Will] Well, they got to be.

[00:48:24] [Dan] It's even colder. By the way, this is your city. Did you have any interaction with the National Guard while it was in your city?

[00:48:33] [Will] Well, it wasn't here very long.

[00:48:36] [Dan] Even so.

[00:48:37] [Will] I mean, the ICE stuff has had a lot of impact.

[00:48:42] [Dan] But directly, have you directly encountered any of this federal activity?

[00:48:48] [Will] I've encountered some ICE activity that I have quickly moved away from so as not to get caught up in anything.

[00:48:54] [Dan] Probably wise.

[00:48:57] [Will] Yeah.

[00:48:58] [Dan] I have not encountered that in St. Louis.

[00:49:01] [Will] Yeah. No. And well, yeah, we know some people who work for some of the public schools that are in heavily affected areas where every week new kids get orphaned and then the principals have to figure out who's going to take care of them and how to protect everybody from the federal authorities that are allegedly here to protect us.

[00:49:23] [Dan] Not totally clear to me how this is making America great again, but we will see.

[00:49:29] [Will] Well.

[00:49:30] [Dan] Did you see Stephen Miller's deranged tweet over the holidays about how he was watching the Dean Martin-Sinatra Christmas special with his family and how could you watch this and think that we need—I think he used the phrase infinity migrants. Did you see this?

[00:49:48] [Will] I did.

[00:49:49] [Dan] And then he got immediately pilloried because both Sinatra and Martin are children of immigrants. And Dean Martin isn't even Dean Martin's real name. He's an Italian. But it's just like, what is wrong with this guy? He's just sitting there. Just be with your family, man. You just can't stop thinking about how you hate immigrants. I mean, sometimes it's like a parody, these people.

[00:50:17] [Will] Yes. Although I assume this is the goal of this kind of social media is to. You can make the conversation about topics you think are good for it to be about. I think the Trump administration thinks it's good. When the topic of conversation is about how they are lawlessly doing things to non-Americans, because that makes people happy.

[00:50:38] [Dan] I got to say, I think there's many horrible scandalous things this administration is doing. Honestly, their social media activity, the things that the official DHS Twitter is tweeting out, are among the most disturbing to me. They're just tweeting out straight up white supremacist memes. Very, very, very disturbing to me.

[00:50:59] [Will] I don't disagree, although how do you rank that compared to things like changing the captions for all the portraits of former presidents that you say sort of deranged partisan things about your recent partisan opponents or putting—

[00:51:15] [Dan] The ones in the White House?

[00:51:16] [Will] Yeah, or putting up a—

[00:51:17] [Dan] That amuses me a little bit more and seems a little bit less—mean, how many people are going to see that?

[00:51:24] [Will] A lot on social media and random tourists from wherever. Or putting up a false timeline of January 6th.

[00:51:33] [Dan] Yeah. I mean, those things are all bad. I feel like I'm constantly confronted with these things. I mean, the memes. I think they've just put 21-year-old hard-right edgelords in charge of these official Twitter accounts. And is it worse than physically doing terrible things to people and sending them to horrible hellholes in other countries? No, but it's deeply disturbing to me. And it's the way in which it's normalizing truly, truly horrible things, I find.

[00:52:08] [Will] I mean, Dan, these things have all been normalized.

[00:52:14] [Dan] But it gets worse every day.

[00:52:15] [Will] It does. But remember, most of our students don't really remember a pre-Trump era of politics. At this point, we should be fighting—

[00:52:24] [Dan] This is so much worse than the Trump one era though.

[00:52:27] [Will] It is obviously.

[00:52:28] [Dan] This is so much worse.

[00:52:28] [Will] Even during the Trump one era, remember one of the main defenses of Trump was, well, it's just a bunch of mean tweets.

[00:52:34] [Dan] Yeah. But the tweets—

[00:52:36] [Will] I agree the tweets are worse.

[00:52:37] [Dan] His tweets are horrible. They're not as bad as some of the things that are going out under official government headings.

[00:52:46] [Will] I agree. I just think at this point we should really be talking about trying to normalize normalcy. Just descriptively, it's the things we would like to be normal that are no longer normal and we have to—

[00:52:59] [Dan] Yeah.

[00:53:02] [Will] Which is part of what the criticisms of you for normalizing these kinds of discourse are missing. It's like—

[00:53:08] [Dan] By not just declaring it all outside the bounds.

[00:53:12] [Will] It's too late. We're not in charge of the discourse. We're not even in charge of our own podcast where we are an hour in and have barely talked about the opinion we're here to talk about.

[00:53:22] [Dan] We've talked about it some.

[00:53:24] [Will] Some.

[00:53:24] [Dan] You just walked through the actual opinion part, right?

[00:53:27] [Will] Yeah. Okay.

[00:53:29] [Dan] So separate opinions.

[00:53:30] [Will] Separate opinions. Right.

[00:53:31] [Dan] Was there more to say about the—

[00:53:32] [Will] No, not until we get to it. Also, I think we know that there are five justices who joined this opinion.

[00:53:40] [Dan] I mean, there must, by process of elimination, there must be.

[00:53:43] [Will] And no more, because Kavanaugh concurs in the judgment and three justices, Alito, Thomas and Gorsuch, dissent. And so by process of elimination, we know the five who are in the majority. Richard Re pointed out in a post on the Divided Argument Substack that you could almost imagine Kavanaugh doing that intentionally. If Kavanaugh didn't note his concurrence in the judgment, you wouldn't know the full lineup.

[00:54:04] [Dan] And people would describe it as six to three.

[00:54:08] [Will] Yes.

[00:54:09] [Dan] Correct or not.

[00:54:10] [Will] Right. And then somebody would say, well, it might only be five to four, it might be five-one-three, and we'd say, well, we don't know.

[00:54:16] [Dan] It is a weird feature of these things though that the dissenters and concurrences tell us who they are. And even if we can figure out who the five are, I would love to know who wrote this.

[00:54:28] [Will] Right. So there is one other weird feature of this also in a separate post of Richard's on the Divided Argument Substack, which is, what do you think this document is? Is it an opinion? Is it an order? So there's a part of the Court's website Opinions of the Court, where they put the argued majority opinions, and they also put per curiam opinions, like summary reversals, and some interim opinions become per curiam opinions of the Court. And then there's the Orders of the Court page, where they put an order, like a denial of cert, denial of a stay.

[00:54:59] [Dan] And those are usually little PDFs that are in Courier font and three sentences long.

[00:55:03] [Will] Right. But sometimes, there was one of those also over the break where the administration lost something where they wanted a stay. It's some case about National—about the immigration judges. And the stay was denied. And then when it would be an order, but there are separate opinions like dissents, the separate opinions appear on opinions relating to orders, which is classically where a dissent from denial of cert appears. A denial of cert would just be on the orders page, but if it's going to be a dissent from denial of cert, it has to be on the opinions relating to orders page. And so because there are opinions relating to this order, the whole thing is on the opinions relating to orders page. But a little weird is that on the opinions related to orders page, there is not actually a link for the majority opinion. There are just links for the Kavanaugh opinion, the Alito opinion, and the Gorsuch opinion. And then by convention, the order from which they're dissenting is just there. But I think technically therefore it's an order. It's like a kind of law order, I guess.

[00:56:02] [Dan] And the only thing that could have changed to put it in a different box is if they had just put two words, per curiam, at the beginning of it, which is very plausible, right? I mean, for an opinion of this length, I mean, it's not a two-sentence order. Right.

[00:56:16] [Will] And then I don't know what governs the decision whether to put per curiam at the top or not.

[00:56:21] [Dan] I mean, I assume if this had gotten longer, at a certain point they would've done that.

[00:56:25] [Will] It's pretty long.

[00:56:26] [Dan] Yeah. But I mean, if it was 10 pages, right, it would have to be a per curiam at that point.

[00:56:32] [Will] I guess. I was going to say it's longer than some things that are per curiams, like that Louisiana one we talked about. The other funny thing is that once they have these separate writings, they move it from the orders page to the opinions relating to orders page, the font changes.

[00:56:45] [Dan] Yeah.

[00:56:46] [Will] Right? So it would look—

[00:56:47] [Dan] It looks fancier.

[00:56:48] [Will] It looks like an opinion now. It's an opinion font with opinion. With like opinion—

[00:56:52] [Dan] And it will go in the U.S. Reports.

[00:56:54] [Will] Don't the orders go in the U.S. Reports anyway?

[00:56:57] [Dan] I think they do, but maybe in some kind of brief fashion.

[00:57:02] [Will] Yeah.

[00:57:03] [Dan] Yeah. I mean, don't they end up with mem? What is mem, by the way? When you cite a denial of cert, you do like 122 S. Ct. 12, 2000, paren, mem.

[00:57:20] [Will] I don't remember what mem.

[00:57:20] [Dan] Memorandum?

[00:57:21] [Will] Yeah. It is memorandum, but I don't remember.

[00:57:24] [Dan] Yeah, why? What does that mean? Is this mem?

[00:57:30] [Will] It's in fancy font. This is one of these, I mean, this is one of these that sounds like nitpicking, but it is one of the parts that's the true shadow docket nature. It's just like, if you're used to it—so Richard has this post and then Howard Bashman has a comment on the post. It's a long, very helpful response. Oh, it's not that confusing. You just go find the Kavanaugh concurrence and click on it.

[00:57:50] [Dan] Yeah, if you're an insider, if you've done this before.

[00:57:52] [Will] If you're an insider. I mean, even when you're an insider, sometimes you have to remember, no, wait, was this an opinion relating to orders?

[00:57:58] [Dan] I mean, when you're first, you get the push notification that the Court has done something about the National Guard, you go to the website, you're not going, okay, which box is this going to be in? You don't know.

[00:58:10] [Will] Right. So the fact that there isn't just a consistent place on the webpage that these things appear if you wanted to read them is, I think, an artifact of the time when it wasn't that important which box they were in, but it does make it a little shadowy.

[00:58:23] [Dan] Yeah. I mean, and maybe it suggests that the Court should think about having an interim section. I mean, the way that SCOTUSblog—I mean, I think this is one of the really nice things that SCOTUSblog, partner of us, I guess, on the Interim Docket Blog, they're trying to make it easier to find the interim stuff from the front page of the website.

[00:58:45] [Will] Yes. It could be they just need a—now again, I get that they still might want two sections to that, because they want to have—there's some way in which the National Guard opinion is much more likely to be something you want to click on than the application for extra time was denied or—

[00:59:02] [Dan] Yeah, I mean, that would be too messy, right?

[00:59:05] [Will] So now maybe the answer is just that this thing should really be a per curiam.

[00:59:10] [Dan] Yeah.

[00:59:12] [Will] But okay.

[00:59:15] [Dan] Okay. So Kavanaugh's concurrence in the judgment agrees with part of what we just described, but not all of it.

[00:59:23] [Will] He agrees that regular forces means the military, and that therefore the administration loses this application. The route he would take to make them lose, as I understand it, is rather than get into what does unable mean, and does unable—and then therefore require you to get into the Posse Comitatus Act and the Article II question, he would just say the president has not made a determination that he was unable to use the military, because he, like everybody else except the district court and Marty Lederman, thought that he had to make a determination of being unable to use the law enforcement. And so we can just say he hasn't made the determination. Now everybody knows what the statute means. Government loses.

[01:00:06] [Dan] And he also implies that as soon as the president does that, he's likely going to think we should defer to it.

[01:00:12] [Will] "The president, of course, would have great discretion to make that determination, as the state itself acknowledges. See Supp. Reply Brief for Respondents seven, Department of the Navy v. Egan." Yes.

[01:00:24] [Dan] And given his general attitude towards executive power, pretty pro-executive power justice, I don't know whether he would think that it's conclusive that the president just makes that determination or it just gets tremendous weight.

[01:00:40] [Will] Right.

[01:00:42] [Dan] But it would be a very different case for him, right? Very, very different case.

[01:00:45] [Will] Yes. I mean, exactly. You can almost view his reversal here as analogous to the thing he did to administrative agencies where they didn't say the right magic words, and so we can vacate the whole thing. But actually, they might be allowed to do the whole thing again if they just say the right magic word.

[01:01:01] [Dan] Yeah.

[01:01:02] [Will] And we don't know. The Court could have that deferential standard too. They don't rule that out.

[01:01:07] [Dan] Yeah. But here, I mean, the Court has already ruled out that this particular function constitutes executing the laws, right? Or at least strongly suggested that that's ruled out.

[01:01:24] [Will] Well, it's ruled out that the use of the military to protect persons and property outside the scope of the Posse Comitatus Act counts.

[01:01:35] [Dan] Yeah. So I mean, there's not a presidential determination with respect to that that would change the result here.

[01:01:40] [Will] Right. But if the president made a new determination that there's an insurrection in Chicago. Under the standard of—under the standard applied by the Colorado Supreme Court in Trump v. Anderson, which it cites as persuasive authority, and that they can't use the military to suppress that insurrection because doing so would only inflame it further. And so they want to use the National Guard instead. It could be the Court would defer that. Or we can't use the military because the military is all on high alert trying to invade Venezuela.

[01:02:09] [Dan] Yeah.

[01:02:10] [Will] Yeah. We don't know.

[01:02:12] [Dan] Okay. Can we just do one more Kavanaugh thing? Which is towards the end of the opinion, there's a footnote that says, the state's opposition to deployment of the National Guard appears to stem in part from the state's underlying objections to the activities of federal immigration officers when they make immigration stops and arrests. And then he gets into the Fourth Amendment. He says, well, the basic constitutional rules governing that dispute are clear, longstanding and clear. Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence. Stops must be brief. Arrests must be based on probable cause. Officers may not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. And so this was actually the subject of two posts of mine on the Interim Docket Blog. The premise of which was, this seems a little bit hard to square with Perdomo, which seemed to say, and in fact, correctly based on precedent that immigration authorities can rely in part on race or ethnicity in determining whom to stop for immigration investigations.

[01:03:29] [Will] Yep, which is not mentioned, right?

[01:03:33] [Dan] Yeah, not mentioned at all. What did you think? I mean, I sort of said, is this walking back that case a little bit and walking back his separate opinion in that case a little bit, and then you kind of offline sort of suggested, well, maybe this language he said, officers must not make interior immigration stops or arrests based on race or ethnicity, is the key. And I sort of wrote a little post playing with that and sort of seeing if we could come up with some theory where maybe this is interior and Perdomo isn't interior. And turns out, if you look at the way federal law defines border zones, that doesn't work.

[01:04:19] [Will] Right. So I'm sure of two propositions. I'm sure that Justice Kavanaugh thinks that these two propositions, these two opinions can be squared. And I am sure that he knows it is not 100% obvious how to square them. And the fact that this one asserts this proposition to be clear without mentioning the most prominent recent opinion by a Supreme Court Justice that has made this proposition unclear, his own, is surely intentional.

[01:04:48] [Dan] Well, I don't think just made it unclear. I mean, I went through the precedent, and I think it was actually clear that they could do this based on this case, Brignoni-Ponce.

[01:04:59] [Will] Right. I mean, yes, there's a recent opinion that emphasizes that Brignoni-Ponce is still good law. Which by the way was not obvious to me. You might've thought that Students for Fair Admissions and other recent colorblindness cases had abrogated those. And until recently when people were accusing Roberts Court justices of being unprincipled and still believing in the use of race for racial profiling and not for admissions, I said, well, how do you know they support racial profiling? It's not at all obvious to me they would say those cases are right. And we still don't know what the Chief thinks about those cases. But anyway, I think there are ways to reconcile them and it is not obvious what the right one is. You can also say—what does make stops based on race or ethnicity mean? If it's one factor among many, if the other facts—it's confusing. But I did think the interior word might be doing some work either in a doctrinal sense or just in the intuition that Southern California, which is next to Mexico, is different from Chicago, which is far away from Mexico. Now Chicago is next to Lake Michigan, which is part of the Great Lakes, which are in turn a border. And Chicago's also full of, of course, tons of recent immigrants from South and Central America. So I don't know how you're supposed to reconcile them.

[01:06:19] [Dan] Yeah. Okay, so we didn't solve that problem.

[01:06:23] [Will] We could invite Justice Kavanaugh if he wants to. He could write in and explain it, and we'll read his email on the show.

[01:06:28] [Dan] Or come on the show anytime.

[01:06:31] [Will] Okay. Justice Alito and Justice Thomas dissent in part on the basis of the party presentation principle, which didn't the Court very recently, like on this podcast, we talked about a case where the Court reprimanded the lower courts for deciding the case on the basis of an argument that wasn't the one made by the parties in the 12 Angry Men case?

[01:06:52] [Dan] Clark v. Sweeney.

[01:06:53] [Will] Yeah.

[01:06:54] [Dan] Okay.

[01:06:56] [Will] So is this one of those rules that doesn't apply when you're the Supreme Court?

[01:07:00] [Dan] I think it's a rule, sort of like a presumption, but that it can be overcome in certain circumstances. And there's sort of a spectrum. So here, you have the district court making a ruling on the issue. You have an amicus squarely putting the issue in mind of the Court. You have the Court asking for and receiving additional briefing on the issue, and you have it—it's the Supreme Court that's going to decide an issue that could matter for the entire country. I took the position in a blog post that under those circumstances, it seems a little silly to insist on this proposition, that basically insist on that the resolution of this important legal question for the rest of the country should depend on the vagaries of of the lawyering of one of the particular parties to the case. And all the things we might be worried about, like unfair surprise to the litigants, really aren't presented in that situation where the Court has put everybody on notice. We're interested in this issue. Please go brief it. We'll think about it.

[01:08:14] [Will] Yeah. Although, isn't it kind of funny in that the majority is also still kind of relying on the party presentation principle? There are bigger questions like, could the president use the military under the Insurrection Act? Which they don't resolve in part because they're not argued.

[01:08:32] [Dan] Yeah, that's true.

[01:08:33] [Will] So it's a little funny to be like, we'd like to go—the parties were arguing this case at level one. We are going to use discretion to go down to level two and resolve the regular forces question, and then use our discretion to go down to level three and resolve the unable question. At that point, we might go down to Level four and resolve some inherent Article II and insurrection questions. But nah, we're not going to go down to level four. After all, the parties haven't argued it.

[01:09:00] [Dan] Yeah. Yeah, that's interesting.

[01:09:02] [Will] But the parties didn't argue us down to level three or level two, or they did. I mean, once the Court asked them to.

[01:09:07] [Dan] Yeah.

[01:09:08] [Will] I'm not sure he's wrong. It might just be this all just has to be a matter of judgment, and it has to be partly influenced by the merits.

[01:09:15] [Dan] Yeah.

[01:09:16] [Will] Surely part of this is as soon as somebody pointed out that regular forces means military forces, and as soon as you took 10 minutes to look at it, it was kind of clear that was probably right. And then you're like, oh crap. Do we want to decide this whole case on the basis of a false premise and start to confuse everybody with the law? We can't do that.

[01:09:36] [Dan] Yeah.

[01:09:38] [Will] So maybe the answer is you can violate the party presentation principle when it's really clear that you need to.

[01:09:46] [Dan] Yeah. That makes sense to me. And maybe you might have different rules for the Supreme Court than for lower courts, and you might have different rules for cases that you think are immensely consequential and where the Court is going to resolve the issue for everybody versus a case that just really affects the parties.

[01:10:08] [Will] Yeah. Although appellate courts, I mean, appellate courts do have this issue. The Fourth Circuit could be thinking, boy, we're going to make law for all the—

[01:10:17] [Dan] Yeah.

[01:10:17] [Will] So it might be that when the Court reverses a lower court for violating the party presentation principle, there's really an implied second ground, that they're really thinking something like, look, you violated the party presentation principle, and that would be fine if you did it in the service of analysis that was obviously correct, such that when we glanced at the opinion, we were like, well, this is obviously the right answer.

[01:10:36] [Dan] Yeah.

[01:10:37] [Will] When you do it in the service of something that strikes us as not obviously correct, and if anything, a strong lean incorrect, we don't like it.

[01:10:46] [Dan] Yeah, like in the case Clark v. Sweeney, if the Fourth Circuit had said, well, we're just going to get rid of this conviction because it's clear that the trial court judge just entered a judgment of conviction without a jury, something egregiously unconstitutional. And the fact that the habeas petitioner didn't have great lawyering should still give us the ability to correct that. Yeah, maybe that doesn't get granted and reversed by the Court.

[01:11:13] [Will] That's my guess. My guess is that just some justices would say, we're just not going to summarily reverse that. But of course, when they don't summarily reverse something, they don't write an opinion saying why. So that sort of goes without being explored. Okay. And then we have Justice Gorsuch's separate dissent. Which I find very interesting, maybe the most interesting of all the opinions.

[01:11:35] [Dan] Okay. Short.

[01:11:36] [Will] Short. This case touches on sensitive and gravely consequential questions concerning what roles the National Guard and U.S. military may play in domestic law enforcement. To be sure, Congress has supplied us with some statutory guidance, but that statute raises as many questions as it answers. And then it has a bunch of questions. Before calling out the National Guard, must the president be unable to execute the laws merely with federal civilian law enforcement or military troops? Is a presidential declaration that he's unable to, reviewable, and if so, under what standard? Does this provide standalone authority, and how does it interact with the Posse Comitatus Act, the Insurrection Act? What Article II authority does the president have? How far can the president's authority extend before it intrudes on Congress's authority over the militia? And if all those questions were not fraught enough, an even graver one lurks here too. When, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution? See, e.g., Article IV, Section Four, Fourteenth Amendment, Section Five. I am not comfortable venturing an answer to any of these questions. We've never decided a case about any of these things. We don't have much help from the parties' briefs. Therefore, I would decide this application narrowly based only on those few arguments the parties preserved and the evidentiary record as it stands. And on that basis, the president's shown enough to show that the lower court was wrong. And so—I would grant the stay and go no further. What I found interesting is Justice Gorsuch doesn't necessarily disagree with a lot of what the majority and Justice Kavanaugh say. It's just he would stop at level one.

[01:13:09] [Dan] Yeah.

[01:13:10] [Will] And the majority isn't really willing to go all the way down to level five. And Justice Kavanaugh, I guess what I find especially interesting is the way that Kavanaugh and the Gorsuch separate opinions interact. Both of them are like, "wow this is complicated." And there are a bunch of questions here we probably shouldn't be opining about on the interim relief docket. And for Gorsuch, that's a reason to grant the application, let the president win. And for Kavanaugh, that's a reason to deny the application, let the president lose. And both of those are plausible.

[01:13:39] [Dan] Yeah. But Gorsuch stays at what you described as level one, and Kavanaugh goes to level two.

[01:13:43] [Will] Yes. And the majority goes to level—.

[01:13:46] [Dan] And the majority goes to level four.

[01:13:48] [Will] Yeah.

[01:13:49] [Dan] And level five would be the underlying constitutional question?

[01:13:53] [Will] Level five would be the Insurrection Act, I think. And then level six is like, I don't know. We don't know how far the rabbit hole goes. And because it's all discretionary, it just reinforces how discretionary these kinds of decisions are. All the justices seem to know they have discretion to focus on the questions here that they think that they should. And which question you focus on totally shapes who wins, which means that ultimately, I think—

[01:14:23] [Dan] Although to Justice Alito, it doesn't, right? I mean, Justice Alito seems to think government wins at multiple different steps.

[01:14:34] [Will] Yeah, although Justice Alito also doesn't go into all the issues. And in the end, his criticism of the majority is that injecting another issue into the matter was unwise. And suggesting views on a host of important questions without adequate briefing, consideration, or explanation is imprudent.

[01:14:49] [Dan] Yeah.

[01:14:50] [Will] So I think everybody agrees that ultimately it's just up to the Supreme Court's wisdom and prudence to decide whether or not to grant a stay about the deployment of the National Guard domestically. It's not something that law forced them to do one way or the other, which is something that formalists, of course, hate.

[01:15:11] [Dan] Yeah. So I mean, does that mean that you think there should be clearer rules? You could have an incredibly strict party presentation rule. That's a clear rule.

[01:15:20] [Will] You could. I'm not sure we should. No, I mean, I guess I think it is inevitable that the Court's interim relief docket is going to have some discretion like that. This case just happens to sort of really drive it home. And it's funny because so much of the opinions are about various technical legal things. But it's just discretion that shapes how to do them. No, I think this is one of the areas where I think we just need to acknowledge that, and we need to maybe have a more systematic account of how the Court is supposed to exercise that discretion. So I don't know that we need a rule, but that's where it would be nice if we thought, okay, there is a party presentation principle, and there is a kind of well-known exception that you relax the party presentation principle when something, I don't know, when it's an argument the district court relied on and it strikes you as pretty darn clearly correct, or where it's an issue of such importance. Maybe what's really going on here is they too have read the rumors that the Trump administration was going to use the National Guard to "safeguard the 2026 election." They think that'd be really bad and they used their discretion to write an opinion sending out anti-authoritarian vibes with the hope that that would kind of deter the president from trying to steal the midterms. I don't know.

[01:16:42] [Dan] Well, I don't either. I was hoping you did.

[01:16:45] [Will] No, I don't know.

[01:16:49] [Dan] All right.

[01:16:50] [Will] It's a good opinion as far as it goes, but it's a little like, so is Gorsuch's opinion, and Gorsuch's opinion is on the other side.

[01:16:59] [Dan] Lots of unanswered questions, both on the face of the opinion and lots of unanswered questions about how we ended up with the opinion that we ended up with.

[01:17:07] [Will] Yeah. That's the interim relief docket for you folks.

[01:17:12] [Dan] That's the episode. So please rate and review the show on the Apple Podcast app or wherever you get your podcasts. Share the show with friends, coworkers, relatives, anybody you think might listen to the show, we are always looking for new listeners. Our website is dividedargument.com, where we have transcripts of episodes. blog.dividedargument.com for our Substack with commentary from the extended Divided Argument universe. store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com, or leave us a voicemail, 314-649-3790.

[01:17:55] [Will] Thanks to the Constitutional Law Institute for sponsoring our endeavors, as well as the University of Chicago Women's Board for your support this season.

[01:18:04] [Dan] And if there's a long delay between this and our next episode, it will be because Will has been spirited away by federal officers because of his anti-qualified immunity clothing.

[01:18:16] [Will] You're always picking on me, Dan.

[01:18:18] [Dan] Somebody's got to do it.