Publication note for the Christmas holiday: I will publish abbreviated newsletters on December 25 and 26 so I can enjoy our family gatherings on Christmas Eve and Christmas Day.
Supreme Court says Trump cannot deploy National Guard to Illinois
Much of the news media spent Tuesday rightly focusing on additional releases of Epstein files that raised troubling questions about the investigation and prosecution of the perpetrators.
But Tuesday’s most consequential development took place on the Supreme Court’s “shadow docket,” which once again served as the platform for nation-shaping rulings without the benefit of full briefing or argument.
For once, the reactionary majority split on legal grounds rather than resorting to the new legal maxim known as “Trumpus corruptio maxima.”
The Court split 6-3, with Roberts, Barrett, Kavanaugh, Sotomayor, Kagan, and Jackson concurring in the result. (Kavanaugh would have issued the majority’s ruling on narrower grounds.)
But even Gorsuch and Alito expressed reservations about Trump’s assertion of unbounded presidential power to deploy the National Guard for law enforcement.
The decision was procedurally narrow, ruling only that, for now, Trump had failed to demonstrate he had authority to deploy the National Guard to Illinois. But the general “vibe” of the majority’s order and dissenting opinions was skepticism toward using any part of the US military for quasi-law enforcement functions on American soil.
The nuances of the ruling are ably explained by Chris Geidner in Law Dork (Substack), Supreme Court, on a 6-3 vote, rejects Trump’s effort to deploy National Guard in Illinois for now.
Trump invoked 10 USC § 12406 to justify the deployment of the National Guard. Section 12406 provides, in part,
Whenever . . . . the President is unable with the regular forces to execute the laws of the United States . . . the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to . . . execute those laws.
In its order, the majority said that Trump must prove that he has “statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.” Trump v. Illinois | 2025-12-23
The majority ruled “[T]he Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”
In effect, the majority caught Trump in an inconsistent argument. The administration argued that the National Guard was deployed to “protect federal property.” The Court reasoned that “protecting federal property” does not constitute “executing the laws” under Section 12406. Since Trump did not claim he was using the military to “execute the laws” as permitted by Section 12406, there was no legal basis to deploy the National Guard.
Because the order was issued from the “shadow docket,” the ruling should be viewed as provisional. The important point is that the majority is not willing to buy Trump’s facile argument that “I am president and have inherent authority to deploy troops whenever I want.”
The decision was also significant because Justice Kavanaugh took the opportunity to “walk back” his previous horrific suggestion that ICE and CBP could “briefly” stop people based on race, language, and neighborhood. Kavanaugh was savaged in the legal press for his unconstitutional suggestion. But ICE and CBP began detaining people based on skin color and holding them for days. See Bloomberg, ICE Apprehension of US Citizens Derided as ‘Kavanaugh Stops’.
Without referring to his earlier racist concurring opinion, Kavanaugh attempted to reverse the notion that ICE and CBP could stop people on the street and hold them for days based on their race, language, or location.
In a concurrence to Tuesday’s order, Kavanaugh wrote the following in a footnote:
The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests.
The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force.
Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.
Kavanaugh’s footnote will not end the use of the term “Kavanaugh stops” to describe race-based, unconstitutional stops by ICE and CBP. The damage is done to Kavanaugh and to the thousands of residents and citizens who have been illegally detained in the name of Brett Kavanaugh.
Latest releases of Epstein files begin to focus on Trump
There were two additional releases of the Epstein files by the DOJ. The releases were troubling on multiple levels. See The Hill, Latest Jeffrey Epstein files hit Donald Trump harder
First, inconsistent redaction of multiple copies of documents shows that the DOJ is not adhering to the criteria outlined in the Epstein Files Transparency Act (EFTA) for redacting documents. See Snopes, Unpacking claim Trump’s name was redacted by DOJ from Epstein document after release.
Second, the redactions on some documents can be “undone” by using tools in Photoshop or Word. By “unmasking” the redactions, it is clear that the DOJ is using redactions in a manner not permitted by the EFTA. The Guardian, Some Epstein file redactions are being undone with hacks.
Third, the DOJ claimed that some of the most damaging documents are “fakes.” Those documents purport to be a letter by Epstein claiming Trump liked “young nubile girls” and an allegation that Trump committed rape. Deputy Attorney General Todd Blanche warned that such documents are fakes. See Raw Story, DOJ insists Epstein letter suggesting Trump liked ‘young’ girls is ‘fake’, and CNBC, DOJ releases 3rd batch of Jeffrey Epstein files, including some that mention Trump (referencing rape allegation).
Fourth, a 2019 internal DOJ email (when Trump was president) asserted that there were 10 possible co-conspirators in crimes alleged against Epstein and Ghislaine Maxwell. See ABC News, New Epstein files show FBI email asking about ‘10 Co-Conspirators’
Fifth, an internal DOJ email from an assistant US attorney gave a “heads up” that flight logs for Epstein’s plane showed that Trump was a frequent guest. Trump has repeatedly claimed he never flew on Epstein’s plane. See Daily Mail, Trump flew on Epstein’s private jet ‘MORE times than we knew’… along with pedophile and 20-year-old woman, new files reveal.
Sixth, the DOJ is acting as Trump’s personal attorney, running interference for Trump on potentially damaging documents. Indeed, the White House has taken control of the DOJ’s social media account on Twitter, thereby putting the White House in charge of messaging by the DOJ—abolishing any semblance of independence of the DOJ. See Axios (“The White House has begun managing the DOJ’s account on X, an effort to finish out the year and the Epstein file disclosure requirements set by Congress.”)
Trump administration to begin garnishing wages of student loan borrowers in default.
Joe Biden tried to forgive student loan debt, but the Supreme Court stopped him. So Trump is going to begin garnishing the wages of student loan borrowers in default. See Mother Jones, Millions of Student Loan Borrowers Are About to See Their Paychecks Shrink.
Trump and the GOP found plenty of money for billionaire tax cuts, but won’t forgive debt for millions of students taken advantage of by questionable degree mills (like Trump University).
Coalition of 19 states challenges Robert Kennedy’s ban on healthcare for transgender youth
I noted yesterday that the administration was proposing a set of rules that would effectively outlaw healthcare for transgender minors. On Tuesday, a coalition of 19 states filed a lawsuit challenging those rules. See AP News, States sue HHS over youth gender-affirming care declaration.
Concluding Thoughts.
As we head into the Christmas and New Year’s holidays, two things are true (and related): Trump is diminished and vulnerable, and the grassroots movement has held the line against anti-democratic forces long enough to turn the tide. See The Atlantic, Trump Is Suddenly Looking a Lot Smaller. (Accessible to all.)
With pride and a well-deserved sense of satisfaction, we have earned a rest—before we begin in earnest the first significant step in reclaiming the rule of law, the 2026 midterms.
My wife and I wish everyone a blessed and peaceful holiday!
Talk to you tomorrow!
Pro-democracy protest photos
West Los Angeles Bridge Brigade
Rockland, Maine
December 20…yes, cold! Snow arrives tonight. Will be out again Sat 27th!!
Arlington, VA
Christmas-themed Tesla Takedown, December 23. Honking was great today!
Daily Dose of Perspective
The Cone Nebula is 2,700 light-years from Earth and was discovered on December 26, 1785, by William Herschel. I think it looks a bit like a Christmas stocking! Merry Christmas!
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