Here is a correction that Glenn Reynolds posted on Instapundit: “One small correction: The Texas State Guard (not to be confused with the Texas National Guard) is indeed immune to federal control, but it is not a “state militia.” It is better understood as troops raised with the consent of Congress under Article I section 10 of the Constitution.”
The article is missing two important parts of analysis: the criteria for the issuance of an injunction (including irreparable harm and likelihood of success on the merits) and the standard of review (typically abuse of discretion).
It's these two issues that would shed most light on what the SCOTUS order means to the dispute.
Hi, Eaton. Thanks for your comment. You are correct that an explanation of the Court’s thinking on these two elements would have shed some needed light on how the order would affect the remaining dispute.
I am not going to defend the Court’s omission, especially since I think that given the nature, importance and volatility of the whole situation, the Court should have written an opinion.
But as for the article, I was not trying to analyze all the things they could/should have said, but just to explain the process, the general lack of any explanation for their ruling, and how it did not foreclose further action/defense by Texas. A complete discussion of their failure to write an opinion, and why that was not a good thing, merits a separate article of its own.
I get it and understand the goal. The lawyer in me . . . .
Also it would be a real shame if the Court majority concluded Texas would lose on the merits because the record was incomplete (or just lose), disagreed on the "invasion" argument, or was buying the Fed's sovereign immunity defense, but said nothing. It's a dumb order substantively and procedurally and has the odor of a weak compromise.
Perhaps an odd way of finding its a non-justiciable political issue!
Except that the case is now back before the 5th Cir. The way things now stand, that Court could hear the entire case on the merits, rule in favor of Texas, and then issue an injunction, because we do not know the reason that SCOTUS vacated the prior injunction.
But, that scenario validates your main point, i.e.,That the court made a big mess out of this.
What the Supreme Court did is set up a possible armed confrontation between US forces and Texas forces. TX can put up wire and the Feds can take it down. Anyone see a problem here? John Roberts is the modern Roger Taney.
To this day, no one can say who fired the first shot at Lexington. Minutemen or Redcoats or some 3rd party or a ND. There are multiple 3rd parties in TX. Radicals on both sides, foreign or domestic intelligence agencies, the cartels. Any of them could desire conflict.
Similarly, who most wanted Jan 6 to get out of control? Who most wants physical conflict on the border? The SCT's half-assed order gets us closer to the latter.
Here is a correction that Glenn Reynolds posted on Instapundit: “One small correction: The Texas State Guard (not to be confused with the Texas National Guard) is indeed immune to federal control, but it is not a “state militia.” It is better understood as troops raised with the consent of Congress under Article I section 10 of the Constitution.”
Glenn is, of course, correct.
The article is missing two important parts of analysis: the criteria for the issuance of an injunction (including irreparable harm and likelihood of success on the merits) and the standard of review (typically abuse of discretion).
It's these two issues that would shed most light on what the SCOTUS order means to the dispute.
Hi, Eaton. Thanks for your comment. You are correct that an explanation of the Court’s thinking on these two elements would have shed some needed light on how the order would affect the remaining dispute.
I am not going to defend the Court’s omission, especially since I think that given the nature, importance and volatility of the whole situation, the Court should have written an opinion.
But as for the article, I was not trying to analyze all the things they could/should have said, but just to explain the process, the general lack of any explanation for their ruling, and how it did not foreclose further action/defense by Texas. A complete discussion of their failure to write an opinion, and why that was not a good thing, merits a separate article of its own.
Thanks again for adding value to the discussion.
John
I get it and understand the goal. The lawyer in me . . . .
Also it would be a real shame if the Court majority concluded Texas would lose on the merits because the record was incomplete (or just lose), disagreed on the "invasion" argument, or was buying the Fed's sovereign immunity defense, but said nothing. It's a dumb order substantively and procedurally and has the odor of a weak compromise.
Perhaps an odd way of finding its a non-justiciable political issue!
Except that the case is now back before the 5th Cir. The way things now stand, that Court could hear the entire case on the merits, rule in favor of Texas, and then issue an injunction, because we do not know the reason that SCOTUS vacated the prior injunction.
But, that scenario validates your main point, i.e.,That the court made a big mess out of this.
Not to belabor it but what if the SCT thought the record in fifth wasn't sufficient!
What the Supreme Court did is set up a possible armed confrontation between US forces and Texas forces. TX can put up wire and the Feds can take it down. Anyone see a problem here? John Roberts is the modern Roger Taney.
You are correct. They have created a potentially very dangerous situation
To this day, no one can say who fired the first shot at Lexington. Minutemen or Redcoats or some 3rd party or a ND. There are multiple 3rd parties in TX. Radicals on both sides, foreign or domestic intelligence agencies, the cartels. Any of them could desire conflict.
Similarly, who most wanted Jan 6 to get out of control? Who most wants physical conflict on the border? The SCT's half-assed order gets us closer to the latter.
Very informative. Thanks, Mr Lucas.
And tell your friends!
Thanks for your comment, Dave. I appreciate the support!
John
If that were the case, they should have told the 5th Circuit that was the problem, no?
Excellent point, Richard.