This is about actions taken last summer to bring under federal command units of the California National Guard and to deploy them, primarily in the LA metropolitan area, in response to civil disturbances. It was the first in a series of attempted similar actions including to federalize the Oregon National Guard and deploy it to Portland and to federalize the Illinois National Guard and deploy it to Chicago, which ended when the Supreme Court found the relevant statute, 10 U.S.C. § 12406, did not give the President the power to take such actions.

There's two key arguments. First is that §12406(3) was not met because the president hadn't shown that they were unable to execute the law with the regular military. This follows straightforwardly from Trump v. Illinois:

When granting a stay of the district court’s injunction, we concluded that the President “likely acted within his authority in federalizing the National Guard under 10 U.S.C. § 12406(3),” which authorizes federalization when “the President is unable with the regular forces to execute the laws of the United States.” Id. at 1052. However, after oral argument and the conclusion of briefing in this appeal, the Supreme Court issued an order denying the government’s motion to stay a district court’s temporary restraining order barring the federalization of the Illinois National Guard in a case involving similar facts. Trump v. Illinois, 146 S. Ct. 432 (2025) (per curiam). In Illinois, the Supreme Court concluded that the President lacks statutory authority to federalize the National Guard under § 12406(3) unless the President makes two threshold showings: first, that he has “statutory or constitutional authority to execute the laws with the regular military”; and second, that he is “‘unable’ with those forces to perform that function.” Id. at 434. Defendants have not made either of the required threshold showings here. Thus, they have not carried their burden to show that § 12406(3) authorized the Guard’s federalization and deployment.

They go further, though, and find the actions are also barred because the factual predicates in 12406 were not met. SCOTUS did not reach this question.

The Supreme Court’s order in Illinois does not end our inquiry, however, because Defendants argue that the California federalization order “was independently warranted under [§ 12406(2),] the provision authorizing him to call the National Guard into federal service whenever ‘there is a rebellion or danger of a rebellion against the authority of the Government of the United States.’” We conclude that Plaintiffs are likely to succeed on their claim that the exigency determination at issue here—that the conditions in Los Angeles on June 7, 2025, constituted “a rebellion or danger of rebellion” under § 12406(2)—does not reflect a colorable assessment within a “range of honest judgment.” Accordingly, § 12406(2) did not authorize the President’s order federalizing the California National Guard.

This result is important because litigation on this sort of use of force issue is very uncommon. The question of how it is determined whether a factual predicate is met, for statutes where Congress delegates powers conditional on certain facts, has barely been litigated in the use of force context. The court here finds that, even given appropriate deference, the facts in California were not sufficient and therefor the statute did not grant the president the powers he claimed.

Trump v. Illinois functionally closed off the possibility of using § 12406 as an authority to deploy the military domestically, but this precedent is very important because the Insurrection Act contains similar language about rebellion, invasion, or the inability to execute the law. The ruling has no immediate practical effect; to be honest I am not sure why the case wasn't moot, because all these events wrapped up a while ago.

This was by a 2 (Bennet and Sanchez)-1 vote (Bumatay)- with a per curiam, two concurrences, and a dissent.

The per curiam focuses on jurisdiction- the district court judge has not ruled on the TRO, which and the panel rejects the government's theory that the district court had constructively denied the TRO like in AARP, so there was no appealable order.

Bennet's concurrence goes to the merits- arguing there is likely no legal ground for DOJ's demand, the equities are in favor of California and not the government, and Purcell likely applies.

Sanchez's concurrence also goes to the merits- highlighting Purcell and the chaos that would likely result if an injection was granted for the government.

Bumatay's dissent argues that the Ninth Circuit had jurisdiction because the district court had constructively denied the motion, and on the merits that the federal government has power to stop threats to the integrity of an election.

I would be unsurprised if this gets appealed to SCOTUS.

This is regarding the response brief filed Connecticut respondents in the consolidated Viramontes v Cook County and Grant v Higgins 2nd amendment cases.

In the summary of their arguments they argue there is a long history and tradition of banning unusual and dangerous weapons such as the "launcegay" that was responsible for a large number of fatalities. It is a particular kind of lance. It also lists English bans on crossbows and pocket daggers as well as colonial bans on trap guns. They also mention 19th century on bowie knives, but I am unsure if they are referring to bans on their ownership or just their restriction in conceal carry.

At least three States banned the sale of Bowie knives en- tirely. App. 1a-3a, 5a. At least a dozen States and ter- ritories barred the carrying of Bowie knives or dirks, whether open or concealed, and many more prohibited the concealed carry of those knives.

They conclude that several states barred their ownership and sale.

They also argue that AR-15s restrictions are similar to those laws and fall into the category of unusually dangerous. "AR-15s are unusually dangerous compared to their contemporary peers. AR-15s share the same basic structure and operation as their military counterpart, the M-16, and are designed to optimize sustained, rapid, accurate, and lethal fire at long distances." I am not sure the court will find this particularly compelling given that previous firearms that have been allowed were extremely similar to military weapons from the musket to relatively modern bolt actions.

I do think they make a good point here thouhg: "The common-use-only approach also conflicts with this Court’s precedents. The Court has made clear that the Second Amendment protects stun guns but not fully automatic machineguns, even though those weapons are owned at comparable rates. It follows that something other than commonality separates stun guns and machineguns specifically, that machineguns are unusually dangerous." The court has been inconsistent with wanting to say machine guns are beyond the pale, but similarly 'common' weapons have been protected in cases like Caetano. Odds are though they will remain inconsistent on this issue and just say machine guns are dangerous and unusual.

And here is an argument I have heard presented here in this sub by others who have been critical of the common use test. "Legislatures do not always maximally exercise their regulatory power, and this Court has repeatedly rejected a use-it-or-lose-it view of legislative authority. Indeed, there is no other area of constitutional law where the choices of market actors permanently disable legislatures from passing laws to protect their communities. And the common-use-only approach is neither administrable nor capable of principled application. For example, it suggests that AR-15s could permissibly be regulated in 1994, when Congress enacted a federal ban—but that Congress’s choice not to extend that ban in 2004 forever prevented future legislatures from responding to the weapon’s unusual lethality. " I wonder if the court will address this point to anyones satisfaction.

Overall I don't think these arguments will be all that persuasive to the majority that is likely to strike down assault weapons bans. I think that legislatures wouldn't really have the power to ban weapons unless they explicitly were not the kinds of weapons able to be used in a militia/military context such as was ruled in the Supreme Court case of Miller. Banning AR-15s because they are too similar to M-16s just doesn't make sense in that context and likely could only be banned because they are not like m-16s which is what a military would actually use at one point.

Edit: I would also say since most of the examples are pre ratification of the 2nd amendment I doubt those will meet the history required. As for bowie knives I am not sure if that will work as they note some states regulated them in different ways such as limiting how they could be carried. Trap guns are brought up but I have seen criticisms made that is more of manner restriction than it is a ban on any particular type of gun.

Anyway what are you throughts on the response filed by Connecticut? https://www.supremecourt.gov/DocketPDF/25/25-238/430313/20261021172016170_Grant%20v.%20Higgins%20-%20Connecticut%20Response%20Brief.pdf

From judges Smith (G.W. Bush), Bennett (Trump I), Mendoza Jr. (Biden). Summarized by the court:

Petitioner applied for relief based on his membership in a proposed social group consisting of “the LGBT community” or “queer Russian men.” He claimed membership in this social group because he is bisexual. But the immigration judge misunderstood how sexual orientation is defined, reasoning that Petitioner had not met his burden of proving that he is a member of his proposed social group because he has never had sexual relations with either a man or a woman. This reflected a deeply erroneous and arbitrary understanding of bisexuality. A person’s sexual orientation is not solely defined by their sexual relations.

The IJ’s misunderstanding of bisexuality led to other factual errors. Because of these errors, the panel concluded that it was impossible to meaningfully review the agency’s decision regarding whether Petitioner established membership in his proposed particular social group or whether there was a need for additional corroboration. The agency’s fundamental misunderstanding of the particular social group alone required remand

Judge Mendoza Jr. also wrote a concurrence with some strong words for the immigration judge:

I write separately to emphasize that the IJ’s basic misunderstanding of bisexuality hamstrung A.M.’s entire case. The IJ concluded that A.M. failed to establish a wellfounded fear of persecution based on his sexual orientation, in large part because he “has never had a sexual relationship with a man or a woman,” and that he was therefore ineligible for asylum, withholding of removal, and CAT protection.

Alternate titles I considered but rejected as too silly:

• "CA9: immigration courts can't add a 'have sex' requirement to asylum claims"
• "CA9: applicant's lack of game is insufficient to disprove assertions of bisexuality"
• "CA9: bisexual refugees don't need to provide a practical demonstration"

New Hampshire eliminated student IDs as a standalone form of voter identification in April 2026. District Court Judge Joseph Laplante (G.W. Bush) declined to block the law but ordered the state to correct certain guidance before the November election, since student IDs could still be considered alongside other evidence under alternative identity verification procedures

SCOTUS (per curiam) stayed the injunction, citing Purcell and the principle that federal courts should not alter election procedures shortly before an election. Justice Jackson dissented, saying that correcting inaccurate guidance does not change election rules, and that Purcell should not prevent courts from reducing voter confusion.

Opinion: link

From Judges Walker Elrod (G.W. Bush), Willett (Trump I), and Wilson (Trump I):

We determine that switchblade knives qualify as “Arms” and are covered by the “plain text” of the Second Amendment. Because the regulation implicates the amendment, the government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden. Specifically, the FSA’s restrictions on the introduction, manufacture, transportation, and distribution of switchblades fail step two’s “how” analysis.

The FSA addressed a perceived societal problem: the interstate flow of switchblade knives. In response, the FSA sought to ban this activity. Heller and Bruen also dealt with regulations that purported to deal with “perceived societal problem[s].” And in both cases, the Supreme Court rejected those regulations as inconsistent with the Second Amendment’s principles, which were “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

Come for the legal analysis of Heller / Bruen, stay for the long introductory paragraph from the judges talking about the history of the Federal Switchblade Act and Rebel Without a Cause (1955)

Interesting piece about what post-Loper Bright statutory interpretation and agency rulemaking looks like.

Some interesting comments from Justice Kagan today at the Catholic University of America, which I though were worth posting (mods, do delete if you disagree). She continues to be particularly upset with the result in *Rucho v. Common Cause*.

Date: 10/21/2026

Miscellaneous Order

Majority opinion from Judges Pan (Biden) and Wilkins (Obama):

The Mayorkas Memo imposes a default policy: ICE agents and CBP officers generally may not enforce immigration laws at houses of worship, absent exigent circumstances or individualized permission. And DHS itself proclaimed that “rescinding the Mayorkas [Memo] is going to free [ICE agents] up to go after more illegal immigrants.” If rescinding the memo “free[s] up” immigration authorities to “go after” immigrants at houses of worship, reinstating the memo is likely to have the opposite effect.

Plaintiffs’ members likely face imminent harm from increased enforcement at their houses of worship; that harm is traceable to the new enforcement policy; and the relief requested will likely redress their injury, at least in part. We therefore reverse the district court’s denial of plaintiffs’ motion for a preliminary injunction and remand for further consideration of that motion.

Dissenting opinion from Judge Rao (Trump):

Plaintiffs have failed to make a clear showing of standing. In particular, the guidance they seek to restore has no effect on the Executive Branch’s legal authority or enforcement discretion. Plaintiffs ultimately offer only speculation that restoring policy guidance from a previous administration will change the enforcement practices of this one. Because redressability requires more than conjecture, the district court correctly denied a preliminary injunction. I respectfully dissent.

Date: 10/20/2026

Miscellaneous Order

The Supreme Court announced on Monday that it would revisit the issue of race and school admissions, three years after it sharply restricted affirmative action in higher education.

The case involves four selective public middle schools in Montgomery County, Md., just outside the nation’s capital. A group of mostly Asian American parents sued the school system after it changed its admissions criteria, saying that the new rules unconstitutionally discriminated against Asian American students.

In 2023, the Supreme Court struck down race-conscious admissions programs at Harvard and the University of North Carolina. The justices did not address other school policies intended to diversify student bodies that do not explicitly address race.

Since then the court has declined to hear several other challenges to admissions criteria at elite public schools, including one from Virginia and another from the military academy at West Point.

Access full gift article, NO PAYWALL.

Date: 10/19/2026

Order List

Welcome to the r/SupremeCourt 'In Chambers' discussion thread!

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Here's a fun cert petition from the SG filed yesterday (docket):

This case presents the important question whether federal courts have the authority to universally vacate agency rules under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq. Under that statute, reviewing courts are directed that they “shall” “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious,” or “otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). The question is whether the authority to “set aside” agency actions allows federal courts to vacate agency rules as to everyone, including non-parties, and, if so, in what circumstances.

The answer is that the APA does not authorize such sweeping relief. Even if the APA authorized universal vacatur in some circumstances, universal vacatur would certainly not be an appropriate “default” remedy.

This Court should return the lower courts to their proper role under the APA. To “set aside” unlawful agency action in the course of judicial review is not to “nullify” it; it is a rule of decision that does not displace the traditional remedial limits on federal courts. Texas, 599 U.S. at 695 (Gorsuch, J., concurring in the judgment). This case presents a good vehicle to make that clear. The en banc court identified no reason why universal relief was necessary to redress the parties’ injuries, and its summary refusal to revisit its own precedent in light of CASA confirms that only this Court can resolve the propriety of universal vacatur. This Court should grant the petition for a writ of certiorari.

Some of this is clearly riffing of a Gorsuch / Thomas / Barrett concurrence from 2023. But... Kavanaugh also filed a solo concurring opinion in 2024 where he was very clear what he thought of the argument being made:

The Government’s position would revolutionize longsettled administrative law—shutting the door on entire classes of everyday administrative law cases. The Government’s newly minted position is both novel and wrong. It “disregards a lot of history and a lot of law.” M. Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J. 2305, 2311 (2024).

We'll see whether we get a cert grant or not, but I honestly don't see how the government plans to count to 5 -- I can't see Roberts joining Gorsuch / Barrett / Thomas on this one.

I think it is hard to think of a better case than this one for a cherry-picked, results-oriented, poorly reasoned approach that disregards history entirely when inconvenient, other than maybe Dred Scott itself. Fact that Clarnece Thoams joined this and continued to use it later, I think defeats any idea that he just applies original meaning naturally without some predetermined goals in mind.

In Boerne, the Court, out of nowhere, invented the idea that laws Congress makes to enforce the 14th Amendment must be" congruent and proportional". Problems with this are numerous. First, it completely ignores McCulloch. In McCulloch, Chief Justice Marshall expressly said that:

"If a certain means to carry into effect any of the powers expressly given by the Constitution to the government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance"
.

In other words, if means Congress employs are not prohibited by the Constitution, it is up to Congress, not courts, to decide just how necessary those particular means, as opposed to some less restrictive ones, are. Note that Marshall used word" apporpiorate", same language that appears in Section 5, and indeed history shows that people in Reconstruction Congress had McCulloch in mind when they wrote that. Yet Boerne rejects that and insists that it is for courts to decide just how necessary the means are, whether they are really congruent and proportional to the need, given the facts on the ground.

Furthermore, to see just how broad Reconstruction Congress understood language of law, we can look at what it did under both section 2 of the 13th Amendment, which uses similar language. Under Section 2, Congress passed the Civil Rights Act of 1866, which went far beyond just banning literal slavery; it banned racial discrimination in contracts, sale of property, equal citizenship,legal punishment, and much more that was not literally slavery, and a large majority of Congress understood Section 2 to allow that; those who did not were a small minority. Indeed, after it was passed, in the same year, a justice on the circuit explicitly upheld it under Section 2 and read it very broadly in the case United States v. Rhodes Justice Swayne riding circuit said that:

"We entertain no doubt of the constitutionality of the act in all its provisions."

The underlying prosecution itself concerned white defendants who had burglarized the home of Nancy Talbot, a Black woman; it went far beyond chattel slavery. And indeed Justice Harlan took a broad view of both 13th and 14th in Civil Rights Cases. Court finally partially restored the view Harlan had in Jones v. Alfred H. Mayer Co. too before Boerne. Generally, being on the opposite side of Harlan on civil rights laws is something not to be proud of. And indeed after 14th was ratified in laws passed in 1870/1871 and KKK act of 1875, Congress again went very far, even banning purely private vilence against rights secured by 14th ammendment.

All of this goes to show that Boerne's insistence on a narrow reading of the word" enforce", is very misplaced; that word was understood much more broadly at the time than Boerne made it seem like

Another major problem that makes Boerne doubtful, is its spiritual predecessor, Dred Scott. In Dred Scott, Chief Justice Taney cherry-picked history to rule that Congress cannot ban salvery in new territories. And the Reconstruction generation thus had deep skepticism and distrust of the Supreme Court. They saw the Court as hostile to, not protective of civil rights. The idea that they would want the Court to do the primary work of protecting rights and micromanaging laws Congress passes to protect civil rights, is very doubtful in light of that history to say the least.

One of the fig leaf Boerne used, is federalism, but 14th Amendment cannot bend to free standing federalism, federalism must bend to 14th ammnemdnet instead, it was major change in structure of the country. And indeed, even many originalist scholars have pointed out these flaws with Boerne:

Institutions and Interpretation: A Critique of City of Boerne v. Flores by Michael McConnell

Problems With Boerne v. Flores-Four objections for originalists by William Baude

This Week in Judicial Supremacist Arrogance: City of Boerne v. Flores at Twenty- By Michael Stokes Paulsen

The Reconstruction power- by Jack Balkin

Originalist Law Reform, Judicial Departmentalism, and Justice Scalia- by Kevin C. Walsh

https://fedsoc.org/events/the-original-meaning-of-the-fourteenth-amendment-implications-for-labor-law by Evan Bernick and Christopher Green

The Lawfulness of Section 5 — and Thus of Section 5- by Akhil Amar

All of this goes to show, that history entirely rejects view court took in Boerne, and instead it is these Warren corut decisions that are actually supported by history:

https://en.wikipedia.org/wiki/Katzenbach_v._Morgan

https://en.wikipedia.org/wiki/United_States_v._Guest

Supremecourt.gov Audio Stream [10AM Eastern]

Salazar v. Paramount Global

Question presented to the Court:

Whether the phrase “goods or services from a video tape service provider,” as used in the Video Privacy Protection Act's definition of “consumer,” refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.

Opinion Below: 6th Cir.

Orders and Proceedings:

Brief of petitioner Michael Salazar

Brief of respondent Paramount Global

Reply of petitioner Michael Salazar

-----

Our quality standards are relaxed for this post, given its nature as a "reaction thread". All other rules apply as normal.

Live commentary threads will be available for each oral argument day. See the SCOTUSblog case calendar for upcoming oral arguments.

Date: 10/13/2026

Miscellaneous Order