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Donald Trump the Megathread part II - Mod Warning updated in OP 12/2/26
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Your concern about “where they are not based” is valid, and is one of the practical issues which Kavanaugh is worried about in his concurrence. He did believe the order should remain, but was not happy about the majority’s expanded commentary.
A footnote he makes also includes this observation.
So when it comes time to the merits, I think there is an excellent chance that Kavanaugh is likely to depart from the other five. That would still put the administration in the minority unless one of the majority’s thresholds is reached in the merits phase (or one of the majority gets convinced by the dissent’s arguments) but the bottom line is that if Trump decided to escort ICE with Marines instead of Guardsmen, this entire line of argument would be moot and there would be an entirely different debate being held in the courts.
Frankly, I disagree with the majority’s interpretation. (For what is worth, my not being a supreme court Justice and all). IMO, there should be no practical legal difference between federalized national guard under Title 10 federal command, and regular federal Title 10 forces under federal command, and the term “regular forces” in the context of the legislation should be interpreted as “the civilian forces normally used to enforce laws”. (But I also understand the legal logic flow they used to get there, it is not entirely without basis). According to Gorsuch’s dissent, this “civilians first” principle was a shared interpretation by both parties at the district court level, and the majority basically added a definition which nobody asked for.
Post edited by Manic Moran on2 -
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