A deep dive into last Tuesday's ruling in which a 6-3 majority of the Court stopped the Trump administration from deploying federalized National Guard troops into and around Chicago.
Does it strike you that the majority issued a relatively lengthy opinion AND all justices wrote or joined an opinion in a case denying relief to the Administration while the same COURT has never written so extensively AND all justices wrote or joined a relatively lengthy opinion in a case where the Court denied relief to private citizens or States? Is there a double standard here?
I agree with your takeaways from the decision to deny Trump a stay. I have written separately on the significance of Justice Kavanaugh’s enigmatic concurrence. Is Kavanaugh stepping back from the brink on potential Fourth Amendment violations? You put it best as a possible mea culpa for the damage Kavanaugh caused in the Los Angeles case. Time will tell.
Steve Vladeck, you did it again. You answered the questions I was asking myself, and which I had not seen answered in any of the other prior analysis about this case that I had read. Specifically, what about Justice Kavanaugh’s point about the potential need to federalize the National Guard to serve protective purposes in the event of an attack on government buildings? Your answer makes clear that this is really a canard: the National Guard can still be deployed for protective purposes, upon to, and under the command of, the relevant governor. I also had been wondering whether any of the dissenting justices’ procedural point was valid and had not seen that addressed elsewhere. Your answer addresses that as well, revealing that argument for the weak and hypocritically deployed maneuver that it is. I always learn so much from your posts. A very good week for Georgetown Law professors! Thank you!!
In 1988, Justice Scalia issued a dissenting opinion in Morrison v. Olson for the purpose of powerfully emphasizing profoundly important principles that are relevant here:
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780 . . . . The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47 [ ]. Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours."
Justice Scalia highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
Our Constitution repeatedly emphasized how the legislative authority necessarily predominates regarding the particular issue in this case.
First, the Preamble emphasizes that the primary purposes for which "We the People of the United States" acted as the supreme legislative authority to "ordain and establish [our] Constitution" included to "secure the Blessings of Liberty to ourselves," and specifically to "insure domestic Tranquility."
Second, the only other instance in which the People used the word "domestic" in our Constitution was in Article IV. There, the People emphasized that we generally reserved this particular power to state legislatures (and we did not delegate such power to the President) to decide when federal power can be used to quell "domestic Violence."
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion" but only "on Application of the Legislature, or of the Executive (when the Legislature cannot be convened)" can the United States "protect" a state "against domestic Violence."
Third, in Article I, the People vested in Congress the power "To provide for calling forth the Militia" (but only to the extent both necessary and proper) "to execute the Laws of the Union, suppress Insurrections and repel Invasions."
Fourth, despite the foregoing text of Article I, the People simultaneously in Article I emphasized that "all Laws" must "be necessary and proper for carrying into Execution the foregoing Powers" of Congress "and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (including the President).
Fifth, in Article VI, the People further emphasized that all federal "Laws" must be "made in Pursuance" of our Constitution.
Sixth, as Article II and each President's actual words at the beginning of every term emphasize, the People vested in the President only such power as is necessary and proper to "preserve, protect and defend [our] Constitution."
Clearly, the People did not vest in Congress any power to enact a mere federal statute that could contradict or authorize the President to violate our Constitution. Equally clearly, the People did not vest in the President any power to violate our Constitution.
I definitely agree with you on this matter. A while back, I watched MSNBC, Alex Wagner reported through propublica that, Justice Thomas and his wife were taking money from Harlan Crowe.
As a lawyer, I think party presentation is super important. I don't ever want to lose to an argument not in the briefing that the judge picked up themselves and thought was super clever even though nobody argued it. So there should actually be a very strong non hypocritical rule that we don't do this, no matter how clever or even "right" the argument is. Especially since parties and their lawyers may have very good reasons for not presenting an argument.
But... that's not what happened in Trump v. Illinois. Rather Lederman made his argument and... the Court asked the parties to brief it. It then WAS presented by the parties. It seems to me THAT'S fine.
It only would have violated party presentation had the Respondents said "Lederman is full of it, we are not making that argument". In that situation, the Court shouldn't adopt it no matter how good it is.
I’m not comfortable with the government adopting an interpretation of a statute that should be obvious to everyone is wrong, so long as the opposing party acquiesces. In that case, who cares whether the parties have good reason to pursue this strategy? Especially when the ramifications will be more widely felt, in this case, Guard members who may be subject to call-up that’s not authorized.
Because court cases are controversies between parties, and the courts are not Roving Commissioners of Everything That Is Good And Right but rather the decisionmakers in disputes between actual parties. What the parties submit for decision is important and arguably delimits the Court's Article III power.
We enforce Article III all the time by denying standing or declaring mootness or ripeness problems in cases where the public might benefit from a decision, and we do so because courts' power to adjudicate is triggered only by an actual dispute between parties with stakes in the outcome.
Well, this is part of the same thing. It's the parties' dispute and they should have a lot of deference in terms of how they frame it.
I’ll just add that I think party presentation makes a lot more sense as a principle in district courts and courts of appeals, and a lot less sense in the Supreme Court—for the reasons Jennifer raises, but also because the whole purpose of the shift in Supreme Court jurisdiction from mandatory to discretionary was to enable the Court to act as a true constitutional court (rather than a supreme court of appeals) in as many cases as possible. Article III constraints pose at least a bit of a paradox to that model, but they’re the only ones that should, IMHO. Everything else should be prudential.
The party presentation principle also makes more sense in cases at law than in cases at equity.
But courts should (almost) never allow the parties to stipulate to applying an incorrect understanding of the law. If a court - and especially the Supreme Court - spots a controlling issue of law that should be addressed - it should do what the Supreme Court did here - identify it and ask the parties to brief it.
The worst result is when a court decides a case on issues that were never tasked or briefed by the parties. That can be a violation of due process.
Judges shouldn't blindside anyone. They should treat compelling legal issues or authorities like they treat sua sponte judicial notice of a material fact. But judges cannot defer to the parties about the law, especially when considering our Constitution. Otherwise, we would have a government of men and not of laws.
The Supreme Court actually expressed that view in National Bank of Oregon v. Ind. Ins. Agents of America, where it explained how a Court would not be hidebound by the arguments of the parties if that effectively forces the Court to render advisory opinions because the parties agreed on an interpretation that is incorrect.
"The contrary conclusion would permit litigants, by agreeing on the legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory."
Levon, the actual problem that we're facing right now is SCOTUS justices (repeatedly) knowingly misrepresenting the meaning of the plain text of our Constitution--and doing so to purport to dictate consequences (judgments) that they know clearly violate the plain text, plain meaning and plain purpose of our Constitution. For specific examples, please consider "Two Wrongs Meant Nothing SCOTUS Justices Did in Trump v. Anderson Was Right" https://blackcollarcrime.substack.com/p/two-wrongs-meant-nothing-scotus-justices?r=30ufvh
As Chief Justice Marshall and SCOTUS rightly emphasized in Marbury v. Madison, “The government of the United States has been emphatically termed a government of laws, and not of men.” But SCOTUS justices are using their so-called judgments and so-called opinions to impose a government of men and not of laws. Men and women on SCOTUS are using SCOTUS exactly and as egregiously as the men of Parliament used Parliament before the American Revolution. See, e.g., "SCOTUS Justices' Schizophrenic Falsehoods about Legislatures ('the Presumption of Regularity' of State Legislatures and Congress as a Dangerous 'Vortex of Power') https://open.substack.com/pub/blackcollarcrime/p/scotus-justices-schizophrenic-falsehoods?utm_campaign=post-expanded-share&utm_medium=web
Amanda Frost has a great piece, from back in 2009, on what is now, at least in part, flying under the "party presentation principle" banner. It's called "The Limits of Advocacy," and here's a link:
Interesting that the dissenters did not embrace any of the government’s arguments with respect to the meaning of “regular forces,” but at least one of them would have found the “unable” prong met if regular forces were prevented by the Posse Comitatus Act from executing the law (or at least thought this was a difficult question that shouldn’t have been addressed). The majority’s rejection of that view ought to make it more difficult to deploy NG to get around the PCA. What effect does the holding have on the planned NG civil disturbance rapid reaction force (or whatever they were calling it)? I’m not sure what activation authority that entails.
It seems to me the president can order the creation of such forces in each State Guard, but cannot order them deployed absent the circumstances delineated in the Court's finding. In other words, the regular armed forces must have been authorized in accordance with law, but failed to control the disorder.
This is not only an unlikely situation, but makes a mockery of the term "rapid reaction".
It seems it would be up to the governor, unless Congress has used its authority to provide for organizing militia in such a way as to permit it. But they couldn’t be ordered to deploy in advance, which yeah, sort of defeats the purpose.
The party presentation principle assumes that parties are equally well represented and that inevitably leads to the correct results. But that is seldom true and at the Supreme Court level could and has led to egregiously wrong results. The goal is justice and if the party presentation principle has to be ignored, so be it. Indeed, the opportunity to consider an amicus brief assumes that the party presentation principle does not necessarily lead to right results. And by the way like the major questions doctrine the party presentation principle isn’t in the constitution or any statute, just a device that may or not be helpful in reaching a result that someone who pretends to be principled wants anyway.
Thank you for clarifying the very issue I raised with a friend last night. And putting the language of the opinion back in front of our eyes was very helpful. Happy New Year.
Small note. The most recent ruling from the Supreme Court on the Party Presentation Principle was actually in Clark v. Sweeney, a per curiam released a few weeks ago. In Clark, the Supreme Court reversed the lower court for granting a habeas petition on the basis of an argument never raised by the appellant.
As a longer note, and in addition to Professor Bray's reasons for why the principle was not violated here, Supreme Court precedent favors reaching the argument raised by the amicus, despite the party's concessions.
First, First National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439 (1993) appears to squarely control. In Oregon, the lower court reached an issue neither party contested - the validity of a federal statute - and decided the case according to its belief that the law itself was no longer in force. Before reaching the merits of the dispute, the Supreme Court praised the DC Circuit's decision to assess whether the underlying law was valid in Part II of its opinion. It held that the lower court did not abuse its discretion because "'[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law,'" Id. at 446 (quoting Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991)). In the application, the parties agreed that "regular forces" could apply to civilian law enforcement. However, a majority of the Court disagreed and believed the "proper construction of governing law" was that the term applied to the regular active-duty military forces.
Second, the principle of party presentation may operate differently for cases concerning the exercise of equitable authority. The Supreme Court has addressed party presentation in Clark v. Sweeney, United States v. Sineneng-Smith, and United States v. Greenlaw. All three cases were criminal cases (or derivative criminal cases such as a habeas petition) where federal courts generally cannot exercise any equitable power. As one maxim of Equity puts it, "Equity follows the law" and reversing a preliminary injunction on the basis of an erroneous interpretation of the law would violate this maxim. "Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law." INS. v. Pangilinan, 486 U.S. 875, 883 (1988) (quoting Hedges v. Dixon County, 160 U. S. 182, 192 (1893) (citation modified)).
Third, for similar reasons as above, the principle may operate differently for civil cases generally. For instance, in Arcadia v. Ohio Power Co., the Supreme Court reached beyond the issues briefed and presented by the parties to address "another question antecedent to . . . and ultimately dispositive of the present dispute...." 498 U.S. 73, 77 (1990).
The most important aspect of the so-called Party Presentation Principle is that any such principle must yield to the plain meaning of the plain text of our Constitution. Article VI powerfully emphasizes that our “Constitution” is the paramount part of “the supreme Law of the Land" and absolutely all legislators and "all executive and judicial Officers” are “bound” to “support [our] Constitution” in all official conduct. No principle is more powerful or more important in court than the principles stated in the plain text of our Constitution.
Chief Justice John Marshall writing for the Court in Marbury v. Madison in 1803 specifically addressed the great significance of the oath required by Article VI of our Constitution, and their pronouncements necessarily are equally relevant to the oath required by 5 U.S.C. § 3331 and any other relevant law:
"[I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character."
Any person violating the oath in Article VI, 5 U.S.C. § 3331 or other federal or state law prescribing an oath to support our Constitution commits “worse than solemn mockery” of our Constitution, and any person who dares “take this oath” without believing it commits “a crime.”
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of [any] legislature” (any act of any public servant) “repugnant to the constitution, is void.”
Obviously, “the constitution is to be considered, in court, as a paramount law,” so courts cannot “close their eyes on the constitution, and see only [some purported] law” that might appear to contradict or appear to authorize violating our Constitution.
Any purported court “doctrine” to the contrary “would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory.” It “thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution” that was ratified by the People to be the paramount law of the land.
For me, a non-lawyer, the recent SCOTUSblog article "Party presentation: A mysterious new rule?" by Rory Little (1) seems like a good summary. This excerpt, which echoes comments made by others here, seems quite sensible.
"Given this, the 4th Circuit in Sweeney should have asked the state to address the other issues it saw before ordering a new trial. There is good sense to have a presumption – although not an absolute rule – that issues not raised by the parties should not be independently pursued by judges. The problem with an absolute theory, however, is what judges and lawyers in our trial courts see every day: unequal advocates, unequal resources, and unequal talents of lawyers (and judges)."
Article I of our Constitution expressly emphasized that the People vested in Congress the power (and imposed the duty) "To provide for calling forth the Militia" (but only when necessary and proper) "to execute the Laws of the Union, suppress Insurrections and repel Invasions." Article IV of our Constitution also expressly emphasized that "[t]he United States . . . shall protect each [state] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) [of a state the U.S. shall protect such state] against domestic Violence."
In Federalist No. 43, James Madison expressly addressed the issue of "Protection against domestic violence" and "Insurrection." He emphasized the self-evident truth that "illicit combinations, for purposes of violence" can "be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State." Immediately thereafter, Madison shed light on the thinking of the people who wrote and ratified our Constitution: "Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government," i.e., represent a very significant proportion of the population. The provisions for repressing insurrection or domestic violence exist because "[it]t will be much better that the violence in such cases should be repressed by the superintending power, than that the majority [of the population of a state] should be left to maintain their cause by a bloody and obstinate contest." The point was to avoid or address "violence" that was so significant that it could lead to "a bloody and obstinate contest." Moreover, "[t]he existence of a right to interpose, will generally prevent the necessity of exerting it."
Madison in January 1788 also wrote something about the rights (later) secured by the Second Amendment (which Madison and others in the First Congress wrote and proposed in 1789) in a way that sheds light on the unconstitutionality of Trump's abuse of the National Guard here.
In Federalist No. 46, Madison addressed issues that are relevant to the Court's conduct here and relevant more generally to the Second Amendment. Madison viewed the individual right to keep and bear arms as a sort of sword of Damocles dangling over the head of federal officials. He saw the individual right to keep and bear arms as essential to the moral courage and efficacy of our public servants in state governments in helping secure our rights against federal officials.
Highly relevant to the case before the Court, Madison emphasized that the standing army envisioned in 1788-1789 was "an army of [no] more than twenty-five or thirty thousand men" who would be supported by (or potentially find themselves facing) "militia amounting to near half a million of citizens with arms in their hands."
From Federalist 46:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.
What I found interesting about the decision is that (1) Justices Kavanaugh and Gorsuch obviously were struggling with the resolution of the case and came out differently for different reasons and (2) Justice Thomas apparently finds the parties’ choice of issues to argue more binding than Supreme Court precedent.
The unreviewability of Trump's orders, under the guise of the unitary executive hypothesis, is another bullet the Court deliberately dodged in its decision. They don't want to come near that question unless they have absolutely no way out.
One of the issues that mucks up the waters in these cases seems to be that of federal vs state responsibilities. The issue of protecting federal buildings has recently come up in conversations with some current and fellow former local legislators and administrators. The consensus was that these facilities, primarily the courthouses and FBI offices but also ICE detention centers, could be considered on par with any other office building. The state, city, or county is the host, the federal facilities are the guests. In that interpretation of the relative relationship between local and federal responsibilities, it seems clear that it is the local, and only the local (and I’m including the state in defining what’s “local”) safety forces that need be taxed with the responsibility of protecting federal facilities. Only the local/state administrations, therefore, should be able to activate their NGs, and only if they request further assistance from the federal government or cooperating other states should such assistance be deemed necessary by the local authorities.
Another way to look at it would be that the court should be under less obligation to explain a decision to decline to overturn the circuit court ruling than a decision to overturn it. In either case, a marked contrast.
My initial reaction was: Justice Alito seems to want to be a district judge--if only we could accommodate him!
Notably, Alito cites the "No units will respond to this" call in support of the proposition that local police declined to aid the feds, something that it appears was part of false information provided by the Solicitor General (presumably recklessly rather than deliberately) as laid out in the NYT (https://www.nytimes.com/2025/11/25/us/trump-supreme-court-national-guard-chicago-errors.html) and perhaps elsewhere. Such are the risks of casual factual analysis.
Does it strike you that the majority issued a relatively lengthy opinion AND all justices wrote or joined an opinion in a case denying relief to the Administration while the same COURT has never written so extensively AND all justices wrote or joined a relatively lengthy opinion in a case where the Court denied relief to private citizens or States? Is there a double standard here?
I agree with your takeaways from the decision to deny Trump a stay. I have written separately on the significance of Justice Kavanaugh’s enigmatic concurrence. Is Kavanaugh stepping back from the brink on potential Fourth Amendment violations? You put it best as a possible mea culpa for the damage Kavanaugh caused in the Los Angeles case. Time will tell.
Steve Vladeck, you did it again. You answered the questions I was asking myself, and which I had not seen answered in any of the other prior analysis about this case that I had read. Specifically, what about Justice Kavanaugh’s point about the potential need to federalize the National Guard to serve protective purposes in the event of an attack on government buildings? Your answer makes clear that this is really a canard: the National Guard can still be deployed for protective purposes, upon to, and under the command of, the relevant governor. I also had been wondering whether any of the dissenting justices’ procedural point was valid and had not seen that addressed elsewhere. Your answer addresses that as well, revealing that argument for the weak and hypocritically deployed maneuver that it is. I always learn so much from your posts. A very good week for Georgetown Law professors! Thank you!!
In 1988, Justice Scalia issued a dissenting opinion in Morrison v. Olson for the purpose of powerfully emphasizing profoundly important principles that are relevant here:
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780 . . . . The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47 [ ]. Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours."
Justice Scalia highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
Our Constitution repeatedly emphasized how the legislative authority necessarily predominates regarding the particular issue in this case.
First, the Preamble emphasizes that the primary purposes for which "We the People of the United States" acted as the supreme legislative authority to "ordain and establish [our] Constitution" included to "secure the Blessings of Liberty to ourselves," and specifically to "insure domestic Tranquility."
Second, the only other instance in which the People used the word "domestic" in our Constitution was in Article IV. There, the People emphasized that we generally reserved this particular power to state legislatures (and we did not delegate such power to the President) to decide when federal power can be used to quell "domestic Violence."
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion" but only "on Application of the Legislature, or of the Executive (when the Legislature cannot be convened)" can the United States "protect" a state "against domestic Violence."
Third, in Article I, the People vested in Congress the power "To provide for calling forth the Militia" (but only to the extent both necessary and proper) "to execute the Laws of the Union, suppress Insurrections and repel Invasions."
Fourth, despite the foregoing text of Article I, the People simultaneously in Article I emphasized that "all Laws" must "be necessary and proper for carrying into Execution the foregoing Powers" of Congress "and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (including the President).
Fifth, in Article VI, the People further emphasized that all federal "Laws" must be "made in Pursuance" of our Constitution.
Sixth, as Article II and each President's actual words at the beginning of every term emphasize, the People vested in the President only such power as is necessary and proper to "preserve, protect and defend [our] Constitution."
Clearly, the People did not vest in Congress any power to enact a mere federal statute that could contradict or authorize the President to violate our Constitution. Equally clearly, the People did not vest in the President any power to violate our Constitution.
I definitely agree with you on this matter. A while back, I watched MSNBC, Alex Wagner reported through propublica that, Justice Thomas and his wife were taking money from Harlan Crowe.
As a lawyer, I think party presentation is super important. I don't ever want to lose to an argument not in the briefing that the judge picked up themselves and thought was super clever even though nobody argued it. So there should actually be a very strong non hypocritical rule that we don't do this, no matter how clever or even "right" the argument is. Especially since parties and their lawyers may have very good reasons for not presenting an argument.
But... that's not what happened in Trump v. Illinois. Rather Lederman made his argument and... the Court asked the parties to brief it. It then WAS presented by the parties. It seems to me THAT'S fine.
It only would have violated party presentation had the Respondents said "Lederman is full of it, we are not making that argument". In that situation, the Court shouldn't adopt it no matter how good it is.
I’m not comfortable with the government adopting an interpretation of a statute that should be obvious to everyone is wrong, so long as the opposing party acquiesces. In that case, who cares whether the parties have good reason to pursue this strategy? Especially when the ramifications will be more widely felt, in this case, Guard members who may be subject to call-up that’s not authorized.
Because court cases are controversies between parties, and the courts are not Roving Commissioners of Everything That Is Good And Right but rather the decisionmakers in disputes between actual parties. What the parties submit for decision is important and arguably delimits the Court's Article III power.
We enforce Article III all the time by denying standing or declaring mootness or ripeness problems in cases where the public might benefit from a decision, and we do so because courts' power to adjudicate is triggered only by an actual dispute between parties with stakes in the outcome.
Well, this is part of the same thing. It's the parties' dispute and they should have a lot of deference in terms of how they frame it.
I understand all of that but just think the standard ought to be different when the government is a party.
I’ll just add that I think party presentation makes a lot more sense as a principle in district courts and courts of appeals, and a lot less sense in the Supreme Court—for the reasons Jennifer raises, but also because the whole purpose of the shift in Supreme Court jurisdiction from mandatory to discretionary was to enable the Court to act as a true constitutional court (rather than a supreme court of appeals) in as many cases as possible. Article III constraints pose at least a bit of a paradox to that model, but they’re the only ones that should, IMHO. Everything else should be prudential.
You are correct, of course.
The party presentation principle also makes more sense in cases at law than in cases at equity.
But courts should (almost) never allow the parties to stipulate to applying an incorrect understanding of the law. If a court - and especially the Supreme Court - spots a controlling issue of law that should be addressed - it should do what the Supreme Court did here - identify it and ask the parties to brief it.
The worst result is when a court decides a case on issues that were never tasked or briefed by the parties. That can be a violation of due process.
Judges shouldn't blindside anyone. They should treat compelling legal issues or authorities like they treat sua sponte judicial notice of a material fact. But judges cannot defer to the parties about the law, especially when considering our Constitution. Otherwise, we would have a government of men and not of laws.
Ma'am,
The Supreme Court actually expressed that view in National Bank of Oregon v. Ind. Ins. Agents of America, where it explained how a Court would not be hidebound by the arguments of the parties if that effectively forces the Court to render advisory opinions because the parties agreed on an interpretation that is incorrect.
"The contrary conclusion would permit litigants, by agreeing on the legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory."
Levon, the actual problem that we're facing right now is SCOTUS justices (repeatedly) knowingly misrepresenting the meaning of the plain text of our Constitution--and doing so to purport to dictate consequences (judgments) that they know clearly violate the plain text, plain meaning and plain purpose of our Constitution. For specific examples, please consider "Two Wrongs Meant Nothing SCOTUS Justices Did in Trump v. Anderson Was Right" https://blackcollarcrime.substack.com/p/two-wrongs-meant-nothing-scotus-justices?r=30ufvh
As Chief Justice Marshall and SCOTUS rightly emphasized in Marbury v. Madison, “The government of the United States has been emphatically termed a government of laws, and not of men.” But SCOTUS justices are using their so-called judgments and so-called opinions to impose a government of men and not of laws. Men and women on SCOTUS are using SCOTUS exactly and as egregiously as the men of Parliament used Parliament before the American Revolution. See, e.g., "SCOTUS Justices' Schizophrenic Falsehoods about Legislatures ('the Presumption of Regularity' of State Legislatures and Congress as a Dangerous 'Vortex of Power') https://open.substack.com/pub/blackcollarcrime/p/scotus-justices-schizophrenic-falsehoods?utm_campaign=post-expanded-share&utm_medium=web
Amanda Frost has a great piece, from back in 2009, on what is now, at least in part, flying under the "party presentation principle" banner. It's called "The Limits of Advocacy," and here's a link:
https://scholarship.law.duke.edu/dlj/vol59/iss3/2/
Interesting that the dissenters did not embrace any of the government’s arguments with respect to the meaning of “regular forces,” but at least one of them would have found the “unable” prong met if regular forces were prevented by the Posse Comitatus Act from executing the law (or at least thought this was a difficult question that shouldn’t have been addressed). The majority’s rejection of that view ought to make it more difficult to deploy NG to get around the PCA. What effect does the holding have on the planned NG civil disturbance rapid reaction force (or whatever they were calling it)? I’m not sure what activation authority that entails.
It seems to me the president can order the creation of such forces in each State Guard, but cannot order them deployed absent the circumstances delineated in the Court's finding. In other words, the regular armed forces must have been authorized in accordance with law, but failed to control the disorder.
This is not only an unlikely situation, but makes a mockery of the term "rapid reaction".
It seems it would be up to the governor, unless Congress has used its authority to provide for organizing militia in such a way as to permit it. But they couldn’t be ordered to deploy in advance, which yeah, sort of defeats the purpose.
The party presentation principle assumes that parties are equally well represented and that inevitably leads to the correct results. But that is seldom true and at the Supreme Court level could and has led to egregiously wrong results. The goal is justice and if the party presentation principle has to be ignored, so be it. Indeed, the opportunity to consider an amicus brief assumes that the party presentation principle does not necessarily lead to right results. And by the way like the major questions doctrine the party presentation principle isn’t in the constitution or any statute, just a device that may or not be helpful in reaching a result that someone who pretends to be principled wants anyway.
Thank you for clarifying the very issue I raised with a friend last night. And putting the language of the opinion back in front of our eyes was very helpful. Happy New Year.
Small note. The most recent ruling from the Supreme Court on the Party Presentation Principle was actually in Clark v. Sweeney, a per curiam released a few weeks ago. In Clark, the Supreme Court reversed the lower court for granting a habeas petition on the basis of an argument never raised by the appellant.
As a longer note, and in addition to Professor Bray's reasons for why the principle was not violated here, Supreme Court precedent favors reaching the argument raised by the amicus, despite the party's concessions.
First, First National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439 (1993) appears to squarely control. In Oregon, the lower court reached an issue neither party contested - the validity of a federal statute - and decided the case according to its belief that the law itself was no longer in force. Before reaching the merits of the dispute, the Supreme Court praised the DC Circuit's decision to assess whether the underlying law was valid in Part II of its opinion. It held that the lower court did not abuse its discretion because "'[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law,'" Id. at 446 (quoting Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991)). In the application, the parties agreed that "regular forces" could apply to civilian law enforcement. However, a majority of the Court disagreed and believed the "proper construction of governing law" was that the term applied to the regular active-duty military forces.
Second, the principle of party presentation may operate differently for cases concerning the exercise of equitable authority. The Supreme Court has addressed party presentation in Clark v. Sweeney, United States v. Sineneng-Smith, and United States v. Greenlaw. All three cases were criminal cases (or derivative criminal cases such as a habeas petition) where federal courts generally cannot exercise any equitable power. As one maxim of Equity puts it, "Equity follows the law" and reversing a preliminary injunction on the basis of an erroneous interpretation of the law would violate this maxim. "Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law." INS. v. Pangilinan, 486 U.S. 875, 883 (1988) (quoting Hedges v. Dixon County, 160 U. S. 182, 192 (1893) (citation modified)).
Third, for similar reasons as above, the principle may operate differently for civil cases generally. For instance, in Arcadia v. Ohio Power Co., the Supreme Court reached beyond the issues briefed and presented by the parties to address "another question antecedent to . . . and ultimately dispositive of the present dispute...." 498 U.S. 73, 77 (1990).
The most important aspect of the so-called Party Presentation Principle is that any such principle must yield to the plain meaning of the plain text of our Constitution. Article VI powerfully emphasizes that our “Constitution” is the paramount part of “the supreme Law of the Land" and absolutely all legislators and "all executive and judicial Officers” are “bound” to “support [our] Constitution” in all official conduct. No principle is more powerful or more important in court than the principles stated in the plain text of our Constitution.
Chief Justice John Marshall writing for the Court in Marbury v. Madison in 1803 specifically addressed the great significance of the oath required by Article VI of our Constitution, and their pronouncements necessarily are equally relevant to the oath required by 5 U.S.C. § 3331 and any other relevant law:
"[I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character."
Any person violating the oath in Article VI, 5 U.S.C. § 3331 or other federal or state law prescribing an oath to support our Constitution commits “worse than solemn mockery” of our Constitution, and any person who dares “take this oath” without believing it commits “a crime.”
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of [any] legislature” (any act of any public servant) “repugnant to the constitution, is void.”
Obviously, “the constitution is to be considered, in court, as a paramount law,” so courts cannot “close their eyes on the constitution, and see only [some purported] law” that might appear to contradict or appear to authorize violating our Constitution.
Any purported court “doctrine” to the contrary “would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory.” It “thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution” that was ratified by the People to be the paramount law of the land.
For me, a non-lawyer, the recent SCOTUSblog article "Party presentation: A mysterious new rule?" by Rory Little (1) seems like a good summary. This excerpt, which echoes comments made by others here, seems quite sensible.
"Given this, the 4th Circuit in Sweeney should have asked the state to address the other issues it saw before ordering a new trial. There is good sense to have a presumption – although not an absolute rule – that issues not raised by the parties should not be independently pursued by judges. The problem with an absolute theory, however, is what judges and lawyers in our trial courts see every day: unequal advocates, unequal resources, and unequal talents of lawyers (and judges)."
[1] https://www.scotusblog.com/2025/12/party-presentation-a-mysterious-new-rule/
Gorsuch's concern for federal power is selective.
Article I of our Constitution expressly emphasized that the People vested in Congress the power (and imposed the duty) "To provide for calling forth the Militia" (but only when necessary and proper) "to execute the Laws of the Union, suppress Insurrections and repel Invasions." Article IV of our Constitution also expressly emphasized that "[t]he United States . . . shall protect each [state] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) [of a state the U.S. shall protect such state] against domestic Violence."
In Federalist No. 43, James Madison expressly addressed the issue of "Protection against domestic violence" and "Insurrection." He emphasized the self-evident truth that "illicit combinations, for purposes of violence" can "be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State." Immediately thereafter, Madison shed light on the thinking of the people who wrote and ratified our Constitution: "Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government," i.e., represent a very significant proportion of the population. The provisions for repressing insurrection or domestic violence exist because "[it]t will be much better that the violence in such cases should be repressed by the superintending power, than that the majority [of the population of a state] should be left to maintain their cause by a bloody and obstinate contest." The point was to avoid or address "violence" that was so significant that it could lead to "a bloody and obstinate contest." Moreover, "[t]he existence of a right to interpose, will generally prevent the necessity of exerting it."
Madison in January 1788 also wrote something about the rights (later) secured by the Second Amendment (which Madison and others in the First Congress wrote and proposed in 1789) in a way that sheds light on the unconstitutionality of Trump's abuse of the National Guard here.
In Federalist No. 46, Madison addressed issues that are relevant to the Court's conduct here and relevant more generally to the Second Amendment. Madison viewed the individual right to keep and bear arms as a sort of sword of Damocles dangling over the head of federal officials. He saw the individual right to keep and bear arms as essential to the moral courage and efficacy of our public servants in state governments in helping secure our rights against federal officials.
Highly relevant to the case before the Court, Madison emphasized that the standing army envisioned in 1788-1789 was "an army of [no] more than twenty-five or thirty thousand men" who would be supported by (or potentially find themselves facing) "militia amounting to near half a million of citizens with arms in their hands."
From Federalist 46:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.
What I found interesting about the decision is that (1) Justices Kavanaugh and Gorsuch obviously were struggling with the resolution of the case and came out differently for different reasons and (2) Justice Thomas apparently finds the parties’ choice of issues to argue more binding than Supreme Court precedent.
The unreviewability of Trump's orders, under the guise of the unitary executive hypothesis, is another bullet the Court deliberately dodged in its decision. They don't want to come near that question unless they have absolutely no way out.
One of the issues that mucks up the waters in these cases seems to be that of federal vs state responsibilities. The issue of protecting federal buildings has recently come up in conversations with some current and fellow former local legislators and administrators. The consensus was that these facilities, primarily the courthouses and FBI offices but also ICE detention centers, could be considered on par with any other office building. The state, city, or county is the host, the federal facilities are the guests. In that interpretation of the relative relationship between local and federal responsibilities, it seems clear that it is the local, and only the local (and I’m including the state in defining what’s “local”) safety forces that need be taxed with the responsibility of protecting federal facilities. Only the local/state administrations, therefore, should be able to activate their NGs, and only if they request further assistance from the federal government or cooperating other states should such assistance be deemed necessary by the local authorities.
Another way to look at it would be that the court should be under less obligation to explain a decision to decline to overturn the circuit court ruling than a decision to overturn it. In either case, a marked contrast.
Oops-
This was supposed to be a reply to Michael Schilling
Yes-
My initial reaction was: Justice Alito seems to want to be a district judge--if only we could accommodate him!
Notably, Alito cites the "No units will respond to this" call in support of the proposition that local police declined to aid the feds, something that it appears was part of false information provided by the Solicitor General (presumably recklessly rather than deliberately) as laid out in the NYT (https://www.nytimes.com/2025/11/25/us/trump-supreme-court-national-guard-chicago-errors.html) and perhaps elsewhere. Such are the risks of casual factual analysis.