Legal

We’ve talked about the process of litigation in a civil suit.

A complaint is filed. In the complaint, the plaintiffs state what they are challenging, why they believe the law supports them, what harm they are suffering, and what relief they seek.

The facts in this case are that on Friday, February 7, 2025, Trump “fired” Dellinger. Dellinger was “Special Counsel”. Being a legal eagle, Dellinger filed suit in federal district court to stop Trump from firing him. Before the government could even respond to the filing, the court held a hearing.

The court issued an “administrative stay” on Trump’s action. This is a made up term. A Court can issue injunctions, a TRO is a type of injunction, and they can issue judgments. They can also stay injunctions and judgments. They can’t “stay” things outside the court system.

So “administrative stay” is actually a TRO but using language to hide the fact.

The court’s order required the government to “recognize Dellinger as Special Counsel” and to let him back into the office. It also required the acting Special Counsel to be removed from the position.

That TRO ran through February 13th.

This is exactly right. The Winter factors order the courts to first look at the likelihood of success on the merits. The inferior courts are required to do so. If the district court judge and called this a “TRO” he would have had to use the Winter factors.

By using a made up term for TRO, the judge attempted to avoid the clear instructions of the Supreme Court on how to decide if an injunction should be issued.

To put this in perspective, Winter factors are to court cases what the four rules of gun safety are to gun culture. If somebody doesn’t fallow the four rules, they are at best ignorant, at worse willfully dangerous to themselves and others.

For the court to ignore Winter factors falls into the same category as pointing a loaded pistol at your junk and seeing how fast you can take up the slack in your trigger.

Katsas, the Circuit Judge writing above, says that the Winter factors were not used. The District judge did a shit job. Then went on to say that this case was not ripe to be heard. That Trump needed to wait until a TRO or a preliminary injunction was issued.

This is bogus.

Any time a Constitutional protected right or authority is delayed, irreparable harm has been done. A right delayed is a right denied.

The district judge has gone rogue.

The Trump administration was having none of this. They reached out to the Supreme Court, via their emergency docket, 24A790 to vacate the district court’s order.

So what authority did The People grant the President?

The executive Power shall be vested in a President of the United States of America. Article II, § 1, U.S. Constitution.

He is the boss of the executive branch. There doesn’t seem to be much limiting him. The limits are for Treaties, appointments of Ambassadors, public Ministers and Consuls, Supreme Court justices, and all other Officers of the United States.

Dellinger is an officer of the United States.

The Constitution does not explicitly lay out that the President can fire anybody. On the other hand, it has long been recognized that the authority to hire comes with the authority to fire.

What is the argument of Dellinger as to why SCOTUS should not vacate the order? That it would be granting an exception to the general rule that TRO’s can’t be appealed.

Amazing, the state seems to appeal any TRO that goes against them. But now TRO’s can’t be appealed?

Dellinger has not shown he has been harmed, much less irreparably harmed. It is unlikely that he will succeed on the merits of his case. Yet, he wants to let an inferior court stop the President while the case winds its way through the halls of (in)justice.

A hearing was held on Friday. I expect the judge to issue an order regarding the Preliminary Injunction on Monday.

The TRO expired on Friday, so the judge will either issue an order regarding the case. If she is going to go rogue, she will want to have that done on Monday to stop the President from doing his duty. If she wants to respect the constitution, she will issue an order denying the preliminary injunction.

In my businesses, I sometimes had a bookkeeper. She would receive the bills, make entries in the books, then bring me checks to sign to pay those bills.

I could also tell her to issue a check to somebody or some business. It was never her job to tell me not to pay that person, nor to verify if that entity was supposed to get the money. It was my job to make sure that when I told her to pay an entity, that entity should be paid, and how much.

She was supposed to tell me “no”, only if it would run afoul of the law or if we didn’t have the cash for it. If it meant we would be short later, she still did it.

The Bureau of Fiscal Service (BFS) is that bookkeeper for the Federal Government. They are tasked with making payments. They are not tasked with verifying that the payment should be made.

The decision to make a payment comes from other entities within the bureaucracy.

These payment files are checked against a list of “don’t pay”. If the recipient of the payment is on any of those lists, the payment is held. The agency that sent the payment file is responsible for determining if the payment is proper.

In the best of worlds, this would mean that no payments went to bad actors.

Now consider the case of the President issuing an Executive Order stopping payments to purple people eaters. There are dozens of agencies that send money to purple people eaters. All of those agencies are responsible for stopping payment files from going through to pay purple people eaters.

The BFS receives a payment file to send a payment to a PPE. If that PPE is not on the do not pay list, they will send the payment to that PPE. If the PPE is on a no pay list, the payment is held and the agency is informed.

If that agency sends back “pay it”, the BFS pays it. And the PPE gets money, regardless of what the President ordered.

When the bureaucracy is working with the President, every agency would have heard the “stop payments to PPEs” and would have done so. Any payment files that were already sent might be called back or stopped. If the BFS flags a payment as going to a PPE, everybody says “good job”.

If the bureaucracy is at odds with the President, they ignore the EO and do whatever the hell they want. If BFS flags any payments, they just order them paid.

If some agencies are attempting to obey the President, there can still be others that are not.

Worse, in many cases, contracts are let and budgeted. Some low level GS-2 with TDS can order a payment on a contract they control, and it just gets paid. Even if all of his bosses have told him “no”.

The President has ordered that no more payments to PPEs be made. To make this happen, he can either send people who are willing to obey him to every agency and every desk where somebody can send a payment to a PPE.

Or, he can send a few people to the BFS, and they can analyze each payment file as it comes in, check to see if it is a PPE payment.

Watching the bookkeepers doesn’t mean that the bookkeepers are doing something “wrong”, it is just the proper chock point in the flow of money.

The argument being made by these former treasury officials is that “career officials” are non-partisan and can be trusted to do the right thing.

For decades, BFS has been staffed by nonpartisan career employees led by nonpartisan career official…

There appears to be a claim without evidence that these workers are nonpartisan. At least they left off the “nonpartisan” when describing the fiscal assistant secretary, their boss.

They claim that all these nonpartisan career employees have undergone a security screening. Screening is one of those weasel words we see people use when they want the reader to think one thing when it isn’t true.

When I purchase a firearm, I fill out a 4473 and a “background check” is performed. This is a type of “security screening”. Having undergone a “thorough security screening” does not mean that this person has a clearance. If they had clearances, the brief would have said they have clearances.

This is intended to make it seem that the DOGE team’s actual clearances are not as thorough or complete as the BFS security screening. The reality is that any real clearance is likely better than the screenings these people got.

There is more, I’ll leave you with Grok’s explanation, it isn’t bad.

Not what I intended to write about. The Court has surprised me, again.

Snope and Ocean State Tactical are both distributed for the conference of 2/21/2025.

We will near nothing about these cases before then.

This puts these cases on track for arguments in the new term. Those oral arguments could be as early as October. If the cases are heard in October, we could have an opinion by December.

We didn’t lose this one, the Court took a time out.

You might have heard that the DoJ is suing Hochul and James. This is not quite true. They are being sued in their official capacity. So the Governor, Attorney General, and head of the DMV of New York state are being sued.

What is the suit about?

New York will give a license to illegal aliens. I am not sure how that works, but they do.

The license indicates that the person is an illegal alien. As an illegal alien, they have extra rights under New York law.

In particular, the “Green Light” law requires the DMV to inform the illegal alien anytime the feds request information about them from the DMV.

Things are happening.

This is the case out of New York’s Southern District, under the Second Circuit. The Second Circuit is anti-gun and anti-“The People”. The Southern District translates to New York City.

If you can find a pro-gun or pro constitution judge in the Southern District of New York, you are doing better than most people.

The Lawfare team filed a case on Friday. The case was originally assigned to judge Paul A. Engelmayer for “part 1”. This seems to mean that he is the judge handling “emergencies”.

This is the judge that would handle the cops needing a federal warrant, right now. Or requiring a TRO to stop an ongoing situation with irreparable harm. Lady has just had the shit beat out of her and wants a TRO. The abuse TRO is a state issue, not federal, but I’m trying to explain.

As far as I can tell, they waited until they knew this particular judge was on duty and for it to be Friday night. In general, nothing happens in the courts over the weekend.

This particular judge issued a TRO around 0100 on Saturday. Go find some YouTube lawyers to explain how bad this judge did. It was bad.

To put perspective on the timing of this, the TRO was entered into the docket before the complaint was.

The Trump attorneys weren’t even on the case until Sunday. That appears to have been intentional for the plaintiffs (Bad guys)

The original judge put the case on a “fast track” that had hearings taking place later this week. The judge who is sitting on the merits of the case is having nothing of it.

She ordered the parties to meet and work something out Monday morning. They did, in part. Still not enough.

The plaintiffs waited until the last minute to file their memorandum of law (A statement of the laws they think Trump is breaking and why they believe he is breaking those laws.)

The Defendant, Trump, had their replied filed by 2200.

This stuff is moving rapidly. I expect to see movement on the case by the time you are finished your second coffee.

This is a difficult post for me.

I want the Supreme Court to hear a Second Amendment case this term. I don’t think it is going to happen.

The normal procedure is for a case to get on the docket. The Court gives the party time to file briefs. Once all the briefs are filed, the case is ready for the next step.

The next step is for the Justices to discuss the case in private. This is done in Conference.

There are Wed. and Fri. Conferences. Cases that are petitioning for cert are discussed in the Friday Conferences.

We are informed when a case will be discussed by an entry in the case docket of the form “DISTRIBUTED for Conference of 1/24/2025”

During the Conference, the Justices will make decide to deny cert in a number of the cases. They will decide to grant cert in others. And some they will need more time to discuss.

In general, we hear about the results of the Conference on the following Monday. This is when the “Order List” is released.

The Order List will consist of GVRs. These are of the form “The petition for a writ of certiorari is granted. The Judgement is vacated, and the case is remanded to the COURT for consideration in light of CASE“.

There will be Orders In Pending Cases. These are motions not related to granting cert. They are motions for stays, to file under seal, to proceed in forma pauperis (in the form of a pauper.)

Then there is the “Certiorari Denied”. This is a list of case numbers and case names. That is it. No other information is supplied.

There are other sections for Mandamus Denied, Rehearings Denied, and Attorney Discipline.

Finally, there are statements of the Justices.

These are of the form, “NAME, dissenting”, Title of case, case number, and date.

Following this is the actual dissent. This can be short or long, depending on the Justice writing it and how much they have to say about the denial of certiorari.

I’ve seen them as short as a page and some extending a half dozen or more pages.

What about the cases that aren’t listed?

This is where people get to panic.

If a case is not listed in the Order List, it can be for many reasons. The Justices might be planning a “Miscellaneous Order” for later in the week. We’ve seen that from time to time.

Unfortunately, the most likely reason is that the Justices decided to deny cert.

Given Thomas’ support of the Second Amendment, if they are denying cert, he will be writing a statement dissenting with the judgement.

Conclusion

I’m torn, I don’t want these cases to be denied cert. On the other hand, I can’t think of a reason that there is nothing posted about them, except that there is a dissenting Justice writing a statement.

Last week was a week of winning with Trump 2.0.

Maybe we’ll hear really good news later this week. I’ll keep an eye out for any news and keep you updated.

We are still in a holding pattern. At this instant, the January 27th order list has been released. Neither case is on it.

This means that neither case has been summarily denied certiorari.

They were not granted certiorari, either.

Later today, the dockets should be updated.

If they are relisted, we still have a chance of a decision in the 2024 term.

If they are not relisted, it suggests that there was a denial of cert and one or more of the justices are writing a “statement” dissenting with the denial.

Perspective. A case was conferenced on the 10th, 17th, and 24th. Today they issued the denial of cert. Thomas wrote a dissent, joined by Alito.

This is the same pattern as Snope and Ocean State Tactical.

I do not believe that certiorari has been denied.

If it is granted next week, the Petitioner’s briefs will be filed by March 12, 2025. This still gets us to oral arguments for the 2024 term.

According to my brief research, We are pushing oral arguments into May at this point. The Court doesn’t often hear cases in May.

Having said this, the Court sets their own rules. If they don’t set oral arguments soon, they will likely hear the cases in early October with an opinion out December 2025 or January 2026.

This is the section of the 14th Amendment which says that the children of former slaves and former slaves are citizens of the United States.

This needed to be done because before the slaves being freed, they were not citizens. The defeated southern states were investigating how to disenfranchise former slaves.

It was ratified on July 9, 1868.

Text and this Nation’s historical tradition of regulation

When evaluating a modern regulation, when the Constitutions plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

In this case, “Is the child of an illegal alien born in the United States a United States citizen?”

The plain text of the Constitution clearly covers the individual’s conduct, becoming or acting as a US Citizen.

Since the plain text covers the conduct, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of regulation.

What is the regulation?

This is fairly simple. You are a US Citizen if your mother or father is a US Citizen. You are a US Citizen if your mother or father is a lawful permanent resident when you are born.

Being whelped on US grounds does not make you a citizen.

Is this interpretation consistent with giving former slaves citizenship?

Yes. Former slaves were naturalized (I Believe). So they were citizens.

Their children were born to citizens or lawful permanent residents.

What does “and subject to the jurisdiction thereof” mean?

We know what it meant in 1898. In March of that year, the Supreme Court issued their opinion in —State of New York v. Donald J. Trump, No. 1:25-cv-01144, slip op. at 6 (S.D.N.Y.). This is barely 30 years from the ratification of the Amendment.

Wong Kim Ark was the child of Chinese parents. Those parents were NOT naturalized and were subjects of the Emperor of China.

When Wong Kim was 17 years old, he took a trip to China. He returned with no issues. He claimed to be a US Citizen.

In 1894, four years later, he took another trip to China. This time, when he returned, he was not allowed to disembark. Instead, he was detained.

The District Court for the Northern District of California found that Wong Kim Ark was a US citizen by virtue of his birth and had him released. The government appealed to the Supreme Court.

This is preciously the question the new EO brings forth.

That’s old time speak for “plain text” and “historical tradition of regulation”.

So a child must be born not only within the country, but within the “ligeance” of the country. If they are born of an occupying entity, then they are citizens of the occupying entity, not the country within which they are born.

When everything is said, the Supreme Court in 1898 found that if you were born of parents that were here legally, you were an American citizen.

Is that the end?

Not really, the issues are that of an invading force, or people that are here illegally. Do they have the same birth right as a child born of people here legally?

There is a strong argument to be made that illegal aliens do not gift their whelp with American citizenship merely by pushing them out while on US soil.

It is clear that if they were members of an invading army, their children would not be American citizens.

Standing

Mr. Wong Kim Ark was a person who claimed to be a US Citizen by birth. When the state refused him entrance to the United States, he was able to file a case arguing that he was a citizen and should be granted internee.

The state argued against him.

This means that Wong Kim had standing. The case was about him.

Now consider the current situation. Jose sneaks across the border with his wife Maria. Maria got knocked up by somebody, either north or south of the border, it doesn’t matter.

Maria and Jose show up at the hospital emergency room, where they are given “free” health care because they have no intention of paying for it.

Maria whelps Jose Jr.

Jose and Maria are handed a birth certificate for Junior. They are told they are the proud parents of an American Citizen.

You’re in the next bed and you hear that another illegal has their anchor baby.

You file suit claiming that the Fourteenth Amendment doesn’t grant citizenship to foreign invaders.

The case is dismissed. You have no standing.

This is correct.

Who has standing?

The child, the parents, and the state.

If the state isn’t challenging the granting of citizenship and the parents are not, and the child isn’t, then there is no suit.

What does the EO change?

The EO says that if you are not here legally, whelping a child here doesn’t grant that child citizenship.

If Jose wants Junior to be a citizen, he needs to file suit. The state can now argue against birthright for invaders.

If Jose loses, he better stop. If he appeals, then the circuit court will hear the case. And the state will again argue invaders don’t get to make citizens.

If the loser of that case appeals again, it will be before the Supreme Court.

At which point we will have our second opinion on birthright citizenship being granted by the 14th. It might not turn out the way that the left thinks it should.

As of 1100 Tuesday, we have heard that cert was NOT denied in Snope nor in Ocean State Tactical.

This means that when the dockets are updated later today, we are likely to see them Distributed for Conference of 1/24/2025.

This is as expected. NEXT Monday is when I become concerned, if the cases are relisted.

They have relisted both cases for 1/24/2025.

First, Mark Smith is a lawyer. I am not. Much of the “inside baseball” I’ve learned from listening to Mark and others like him on YouTube.

His analysis of many cases is spot on. Many times his analysis guides mine. I enjoy listening to him. To put it differently, I enjoy him attempting to “make [me] the smartest person in the room.”

One of his early videos was describing how the Roberts court handles grants of cert.

As he explains it, once a case gets to the point where it will be considered for cert, it will be distributed for conference. This means that it will be discussed by the Justices at a particular conference. Those conferences normally happen on Friday.

The court will then issue their “Orders” on the following Monday. Well, that is the day it is normally published.

The orders list consists of mostly of one or two lines, case such and such petition for something is denied. There are long lists of denied, a shorter list of granted.

In addition to the short statements from the Court as a whole, there will sometimes be statements by the Justices regarding denial of cert in a case. These can be considered dissenting opinions.

If a case has been conferenced, there are three options for the case going forward. The case can be denied cert. The case can be granted cert. The case can be relisted.

If a case is relisted. Which means to be distributed for conference the next week. That will not be in the orders. It will show up in the case docket later in the day.

If a case is not listed in the orders, after it has been conferenced, it can mean one of two things (IANAL), it can mean that the case is relisted, and we’ll read it in the docket later in the day, OR it means that cert was granted but one or more Justices needs time to write a statement.

As I said, the orders are normally given on the Monday following the conference.

Occasionally, there will be a misc. orders issued on the Friday of the conference. These are grants of cert.

Why is this important in tea-leaf reading?

The Supreme Court has a term that runs from the first of October to the end of June the next year.

In general, the Court will issue opinions in the same term as they hear oral arguments on the case.

Oral arguments must take place before the close of the term, while leaving the Justices enough time to write their opinion. Consider that the Heller opinion was nearly 157 pages in length, 60 lines per page, 10 words per line.

That makes the Heller opinion around 90,000 words in length. It was written by multiple justices, but still, that is two Novels.

It is 90 long Chris articles. Ally, our writer, will write 3700 words a day when creating the first draft. She will spend a month writing a 50,000 plus word book. Then she starts editing.

This means that if they expect it to be a long opinion, they need to have 45 or more days to write it. That 45 is an S.W.A.G by me.

This puts a fairly hard deadline for oral arguments.

From the time a case is granted certiorari, the clock is running. The petitioners have 45 days to file their brief. The respondents have 30 days to file their brief. The Petitioners have 15 days to file their reply. A total of 90 days.

To give the justices 45 days to ponder and write, oral arguments must happen on or before May 16, 2025.

Putting a more concrete number on this, it took 118 days from oral arguments in McDonald to the date the Court issued their opinion.

This implies my guess of 45 days might be a bit short. Bruen was heard in November and the opinion was issued on June 23rd.

Regardless, if we are going to have an opinion this term, we are running out of time. To hit the May 16th deadline, the Court must grant cert before February 15th.

120 days was this last Thursday, January 16th.

Wolf?

Mark explained to us that we wanted three cases conferenced on the 10th of January. This happened. Good for Mark.

He explained that we would like to see cert granted January 13th, but we should expect the cases to be relisted.

He posted a video on the 10th or 11th telling us that a miscellaneous order had granted cert in three cases on the 10th. This was bad news for the Second Amendment. These cases were being given a jump start on getting things done before it was too late for this term.

On Monday afternoon, two cases were relisted. The case that was in an interlocutory state was denied cert. There was another Second Amendment case that dealing with taxes on firearms that was also denied cert.

This was precisely what Mark had predicted.

On the 17th, our two Second Amendment cases were conferenced for the second time. In the evening, a miscellaneous order granting cert in four cases was issued.

Mark posted another video telling us this was bad news for our Second Amendment cases.

I’m sticking with Mark V1. So far, the situation is progressing as he predicted. This matches my predictions (IANAL).

I refuse to panic or even worry over the weekend. Monday morning, I will read the orders. I expect to see nothing regarding Snope and Ocean State Tactical. Later in the evening, I will check the docket for those two cases, and I expect to find them relisted.

This is on track. We are doing well.

January 27th is the day we need to be paying attention to. That will be the day orders are issued for the conference held on the 24th. If the cases are relisted for a fourth time, I’ll be nervous.

Just remember, it isn’t over until the fat lady sings.