#24 - SCOTUS Issues National Guard Order
Merry Christmas!
Welcome to this week’s newsletter, recapping legal news from sleigh traffic stops to Magi travel bans. Surprisingly, no district judge has yet blocked Jesus’ birth, but the news knows no holidays, so the usual spots are filled with court decisions and constitutional buzz. As promised, Friday will bring a post on the National Guard deployment cases, now including the Supreme Court’s recent ruling.
Before then, please consider sharing this post with a friend.
Alright, let’s get into it. Merry Christmas!
News Desk - This Week’s Top Ten Headlines
Supreme Court Refuses to Block Lower Court Ruling in National Guard Case
Following the Trump administration’s first loss at the Court last week, the Court issued a brief order before Christmas allowing a lower court’s restraining order to remain in effect against the administration’s use of the National Guard in Chicago while the case proceeds on appeal. In October, the administration asked the Court to set aside the order, arguing the danger to ICE personnel in Chicago was sufficient for the President to deploy the National Guard under Title 10. Last month, the Supreme Court asked for briefing on the meaning of the term “regular forces” in the law, a term the administration believes means civilian law enforcement but the challengers see as military personnel. The Court’s recent order agrees with the military interpretation, concluding that the President likely cannot use the National Guard when the military has not first been legally called upon. Since the government has not yet identified a legal way to deploy the military, they cannot yet send in the National Guard, according to the Court. Justice Kavanaugh wrote a separate concurrence, agreeing with the meaning of “regular forces” but backing the administration’s authority to send in those forces anyway. In dissent, Justices Alito and Thomas argued the questions should not be before the Court, and that the legal authority at issue ultimately rests with the president. Justice Gorsuch also dissented, briefly writing that the Court should avoid deciding too many issues on its interim docket, and instead wait for a full appeal and more briefing on the “weighty questions” at issue in the case. The Court has never decided a case on the particular questions raised in this one, and at least four justices suggested the decision deserves a more robust process. Since the currently paused Guard deployments to California and Oregon relied on the same statute as in Chicago, the administration will likely have to pivot to a new basis for those deployments, or explore a means of sending in the military. More to come on this in my Friday post.
Trump Administration Sues D.C. Over Gun Ban
To kick off the holiday week, the DOJ filed a federal lawsuit in federal court against the District of Columbia, its Metropolitan Police Department, and Police Chief Pamela Smith. The suit asserts that D.C.’s strict gun registration requirements and prohibitions on certain semi-automatic firearms, which effectively bans models like AR-15s and other rifles, pistols, and shotguns, violate the Second Amendment. The suit, brought by the DOJ’s Civil Rights Division through its new Second Amendment Section, argues that these restrictions, based largely on cosmetic features or accessories, unlawfully prevent law-abiding citizens from registering and possessing firearms “in common use” for lawful purposes. This, they argue, clearly violates Supreme Court precedents in Heller and Bruen. The DOJ seeks relief finding the policies unconstitutional, along with permanent injunctions barring arrests, fines, or seizures for possession of such arms. In many ways, this suit represents an aggressive step up in federal enforcement of Second Amendment rights.Justice Barrett Sits for Interview With Bishop Robert Barron
In a wide-ranging interview conducted at the Supreme Court and released on Bishop Barron’s “Bishop Barron Presents” series to promote her recently published book, Justice Barrett discussed her family, legal education, mentorships under Judge Silberman and Justice Scalia, and a number of current constitutional law topics. She defended the Dobbs decision overturning Roe v. Wade as a simple application of originalism and unrelated to her Catholic faith. On originalism, she continued to criticize the common good constitutionalism movement, which I recently discussed here. “It’s one thing to say if you like the composition of the current court, ‘I really want to trust them to make decisions to pursue the common good,’” she said. “But . . . you have to imagine ‘what if I didn’t like the composition of the court I was in front of, the court that was making these decisions and they view the common good quite differently than I do.’ That’s the reason why we have a document like the Constitution because it’s a point of consensus and common ground. And if we start veering away from that and reading into it our own individual ideas of the common good, it’s going to go nowhere good fast.” Earlier in the interview, Barrett quoted Justice Scalia, both in the interview and book, that “the judge who always likes the results he reaches is a bad judge.” Justice Barrett has shown a sufficient variety of results to avoid the “bad judge” label: overturning Roe and writing the majority opinion in CASA, but breaking from politically conservative outcomes in cases around foreign aid, the January 6 prosecutions, and social media regulation.Texas Age Verification Law Blocked by District Court
Moving from D.C. to Texas, a state law regulating social media was blocked by a district court on First Amendment grounds. The Tuesday preliminary injunction in blocked enforcement of the Texas App Store Accountability Act, a law set to take effect in January requiring app stores and developers to implement age verification for all users, assign state-mandated age ratings, obtain parental consent for minors to download apps or make in-app purchases, and notify parents of all material changes. The court ruled the law likely violates the First Amendment as a content-based restriction that is both overbroad, vague, and lacking of narrow tailoring to its legitimate purpose of protecting minors. The injunction halts statewide enforcement as the case proceeds. As with last week’s ruling in the Louisiana social media case, an appeal would land in the Fifth Circuit.
First Circuit Rules for “Appeal to Heaven” Flag Display
In another 2025 sighting of the 18th Century flag, the First Circuit unanimously reversed a district court’s denial of relief in Scaer v. City of Nashua, ruling that a New Hampshire city’s “Citizen Flag Pole” program was not government speech under Supreme Court precedent. The program allowed private citizens to fly their own flags on one of four flagpoles outside City Hall from 2017 to 2024, but denied the attempts of a local couple to fly the Appeal to Heaven (or Pine Tree) flag, pictured above. The panel held the program created a forum for private expression, as Nashua historically flew only government flags until 2017, the public and officials referred to it as the “Citizen Flag Pole,” private applicants supplied and often raised their own flags with minimal city involvement, and the city initially approved all requests before later engaging in viewpoint discrimination by revoking a “Save Women’s Sports” flag deemed transphobic and denying others like detransitioner awareness flags or the Pine Tree flag. The city conceded that if not government speech, its actions constituted impermissible viewpoint discrimination under the First Amendment. Rather than grant an injunction, the court remanded for entry of interim declaratory relief affirming the violation, while noting the city could close the pole to private flags entirely, as it did in October of last year.New Mexico Denied Rehearing on State Firearm Purchase Waiting Period
On Monday, the Tenth Circuit denied a petition from New Mexico requesting en banc rehearing in Ortega v. Grisham, leaving intact an August decision that struck down the state’s seven-day waiting period for most firearm purchases as likely violating the Second Amendment. In its earlier decision, the panel ruled that the law burdens the right to acquire arms and lacks historical analogues under Bruen. The denial preserves the panel’s ruling blocking the law statewide, a significant victory for gun rights in the state. Similar cases in California, Colorado, and Florida have not reached their respective appeals courts, so the Tenth Circuit’s decision is officially the first permanent appeals court decision in this area of 2A litigation.ICE Blocked From Courthouse Arrests on Christmas Eve
A district judge in California granted a temporary stay on Christmas eve in a suit brought by noncitizens challenging policies from ICE and the Executive Office for Immigration Review (EOIR) that increased arrests at immigration courthouses. Prior guidance, in effect since 2014, limited arrests to high-priority threats like national security risks or violent criminals, while the new policies authorize more discretionary arrests of noncitizens appearing for courtroom hearings. The order discussed safety risks and an increase in noncitizens skipping scheduled hearings when concluding the challengers deserved a stay. In compliance with its jurisdictional limits, the judge limited the stay to ICE’s San Francisco area of operations, which halts courthouse arrests in the region pending final resolution of the case.Federal Court Rules California School Cannot Secretly Transition Children
Earlier in the week, a different California district court issued summary judgment in Mirabelli v. Olson, declaring California’s “parental exclusion policies” unconstitutional. Escondido Union School District (EUSD), under the guidance of California state law, required its public school staff to conceal a student’s gender identity changes or social transitioning from parents without the student’s consent or parents’ knowledge. The court held that these policies violate the parent’s constitutional rights to direct their children’s medical care and upbringing, as well as First Amendment free exercise rights for religious parents to guide their children’s religious development. In determining the latter, the Court cited the Supreme Court’s decision in Mahmoud v. Taylor (2025) twenty-five times. In addition to those rights violations, the policies infringe on teachers’ First Amendment rights to free exercise of religion and free speech by compelling them to deceive parents or remain silent, according to the Court. Further, the Court emphasized that parents have a fundamental right to information about significant signs of potential gender dysphoria or psychological distress in their children, and that secrecy harms children by denying them parental support, which experts on both sides agree yields the best outcomes. The ruling grants a class-wide permanent injunction statewide, barring enforcement of such policies and affirming that parents and teachers have constitutional rights to accurate communication on these matters; it affects all California public schools, protecting over 5 million students’ parents and 300,000 teachers. A potential appeal would go to the Ninth Circuit, which ruled favorably in a similar case earlier this year.
Judge Boasberg Issues Summary Judgement in Alien Enemies Act Case
Following the D.C. Circuit’s recent order delaying his investigation into the Trump administration, Judge James Boasberg issued a ruling in J.G.G. v. Trump, granting summary judgment to a class of approximately 137 Venezuelan noncitizens removed to El Salvador’s CECOT prison in March. The now infamous judge found the alleged Tren de Araugua members were denied due process by secretive removals without notice or opportunity to challenge their designations as gang members. He rejected the government’s mootness arguments despite the fact that all of the alleged gang members were released to Venezuela in July and are no longer in El Salvadorean custody. The decision requires the government to facilitate the return of the new Venezuelan residents to the U.S. for hearings on their removals. While not ruling on the President’s Proclamation’s validity, the opinion reinforces due process protections against expedited removals and adapts habeas remedies to extraterritorial contexts, potentially impacting similar AEA cases nationwide. The government will, of course, appeal, and the case could reach the Supreme Court on the merits after an interim ruling earlier this year.Justice Alito Stays Third Circuit Ruling Against PA Newspaper
On Monday, Justice Alito granted an emergency stay to temporarily halt a Third Circuit ruling that had enforced a NLRB decision against the Pittsburgh Post-Gazette. The Third Circuit’s November decision upheld the federal agency’s finding that the newspaper’s owners bargained in bad faith with the Newspaper Guild of Pittsburgh, requiring the Post-Gazette to resume negotiations, restore prior contract terms, and compensate affected employees. Following the ruling, striking guild members returned to work after a three-year strike. The Post-Gazette unsuccessfully appealed for en banc review and then sought the Supreme Court stay, arguing the injunction imposed irreversible financial harm, potentially threatening the newspaper’s viability in a market that is not, well, newspaper-friendly. The stay pauses the Third Circuit’s orders pending further review, with responses due by January 5, 2026.
Picks of the Week - Articles Worth Your Time
Thoughts on the Interim Order in Trump v. Illinois
By Jack Goldsmith for Executive Functions
Summarizes some important takeaways from the Supreme Court’s order.
Mentions of Justice Scalia Surge at Conservative-Dominated Court
By Fischer & Wise for Bloomberg Law
Notes a sharp and recent increase in the number of times Justice Scalia is cited in Supreme Court opinions, with the liberal justices using his work most frequently in attempts to persuade or push back against their conservative colleagues.
The Christmas Narrative Is a Power Story
By Isaac Willour for New Guard Press
Although not a legal piece, this article from New Guard does a wonderful job recasting the Christmas story with an insightful lens.
Quote of the Week
“The Constitution is our highest law. It’s a ratified document. If I read into it what my preferences are, rather than interpreting what it says, I’m not being a judge.”
Justice Barrett in her interview
Papers and Research - Scholarly Stuff
Given the decision in Mirabelli listed above, I must recommend a recent paper on parental rights by Prof. Laura Savarese. Most accounts of parental rights focus on the Supreme Court’s recognition of them in key cases from the early 20th Century, but their origins predate even the Civil War, as Prof. Savarese shows. Arguably, the implicit recognition of parental rights dates back to pre-colonial law, but one need only look at the cases around the time of the Fourteenth Amendment to recognize that if there unwritten rights protected by due process, this most qualifies.
Thank you very much for reading. Please like or comment, and I’ll be back Friday!
In liberty,
Ethan Savka