WEEKLY GOOD NEWS ROUNDUP FROM THE FRONT – 1/10/26
Welcome to the first weekly good news roundup of the year (and lord knows we need it)!
Here’s a recap of all of the good things that have happened over the past week in our battle to defend our country from the ravages of the current administration, and to turn this ship around!
*Reminder: The full pdfs of all of the orders, TROs, and other documents discussed below are permanently available to Notes from the Front members in the archives here: https://annepmitchell.substack.com/archive
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Also be aware that the past many days have been very slow, court-wise, because of the holidays, so this is a shorter recap.
Ok, on to this week’s good news!
Here we go:
SUPREME COURT SAYS “NO!” TO NATIONAL GUARD DEPLOYMENT IN ILLINOIS
The Supreme Court smacked down Trump’s appeal of the lower court ruling saying that he could not deploy the National Guard in Illinois. You remember that lower court ruling, it’s the one in which Judge Breyer and the government’s lawyer had this exchange:
THE COURT: And today, I want to know today, even though you say it’s irrelevant. Is there a danger of a rebellion today?
MR. HAMILTON: There is a danger of a rebellion today.
THE COURT: Okay. Well, I’ll be careful.
(That *still* makes me chortle out loud!)
You may also recall that much of the government’s argument was founded in their assertion that the federalization and deployment of the National Guard was allowed under 10 U. S. C. §12406(3) of the Federal law. This law allows the president to federalize and deploy National Guard troops if (and *only* if) he is unable to “execute the laws of the United States” with, and this is important, “regular forces”.
Attendant to this, there have been at least two lines of inquiry and argument:
1. Just what exactly are “regular forces”?, and
2. Is he unable to execute the law with “regular forces”, whatever they are?
Additionally, another section of that law authorizes the president to federalize and deploy the National Guard if there is an invasion or a rebellion. *This* is why you see Mr. Hamilton arguing that there is rebellion, in case the whole the “unable to execute the law” argument doesn’t work.
(Note: This is why you will often see cases being argued “if not A, then, in the alternative, B”. In other words, throw whatever you can in there and hope one or the other of it will stick.)
Well, as you know (because I told you when it happened, and Notes from the Front members received the entire transcript of the hearing), the lower court said “No way to any of it”, put a stay in place saying that Trump could *not* deploy the National Guard in Illinois, and Trump appealed to the emergency docket of the Supreme Court, asking them to remove the stay.
In a move that I’m sure had many at 1600 Pennsylvania Avenue shocked, and one particular resident apoplectic, the Supreme Court was having none of it.
*Even though* this was *not* the Supremes actually reviewing the case on the merits yet, and *even though* it was just a ruling on the emergency docket looking for an emergency *procedural* action (”Make the mean judge in the mean lower court stop picking on me”), the Supremes issued a *25* page opinion (18 pages of which are the dissent from the three dissenting justices, Alito, Thomas, and Gorsuch).
The full 25-page opinion is included for Notes from the Front members, but here’s the gist of it:
“We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be “unable” with the regular military “to execute the laws of the United States.” Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.
At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”
In other words “You have provided *no* actual legitimate proof for anything in the law saying that you have this authority, and the “because I said so” argument doesn’t work.”
Now, this was a procedural “No!”, not a ruling on the merits. In other words, Trump appealed Judge Breyer’s injunction to the Supreme Court and the Supreme Court said “the injunction can stand while the case is being decided in the lower courts.”
But as I always say, in for a spank, in for a slaughter. (Ok, I’ve never said that before, but it felt good to say.)
SUMMARY JUDGMENT!! COURT SPANKS ADMINISTRATION FOR TYING HOMELAND SECURITY FUNDING TO COOPERATION WITH ICE
“Defendants’ wanton abuse of their role in federal grant administration is particularly troublesome given the fact that they have been entrusted with a most solemn duty: safeguarding our Nation and its citizens. While the intricacies of administrative law and the terms and conditions on federal grants may seem abstract to some, the funding at issue here supports vital counterterrorism and law enforcement programs. Some of these programs were likely involved in the response to the tragic mass shooting at Brown University that recently occurred within this Court’s territorial jurisdiction. To hold hostage funding for programs like these based solely on what appear to be Defendants’ political whims is unconscionable and, at least here, unlawful. As such, for the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Summary Judgment”
Thus concludes a most excellent order in the case of State of Illinois v. Noem. The entire memorandum and order (48 pages and included for Notes from the Front members) reads like a masterclass not only on what is and isn’t permissible under the Administrative Procedures Act (APA) when it comes to the tying of government funding to… you know… “you have a nice state here, it’d be a shame if something happened to it”… but very specifically to *actually* “you have a nice state here, it’d be a shame if something happened to it, because we’re not letting you have *homeland security* funding if you don’t play nice with ICE.”
In addition to the State of Illinois, the other plaintiffs are California, New Jersey, Rhode Island, Connecticut, Delaware, District of Columbia, Massachusetts, Minnesota, New York, Vermont, and Washington.
Now that I ruined the ending, here’s the very first paragraph of this memorandum and order from Judge Mary McElroy of the United States District Court in Rhode Island:
“This case is another example of the executive branch’s recent attempts to tie federal grant funding to state and local government assistance with federal immigration enforcement. After a court barred the Department of Homeland Security (“DHS”) from expressly conditioning grant funding within its purview on such cooperation, DHS issued award letters to state governments indicating that hundreds of millions of dollars of anticipated awards to so-called “sanctuary jurisdictions” were being reallocated to other jurisdictions.”
Now, as those of you have followed me for a while will recall, THERE IS NO LEGAL DEFINITION OF “SANCTUARY JURISDICTION”! Remember how I’ve said that there can be no law predicated on something which itself has no definition, and that is true of the term “sanctuary jurisdictions”?
In the first footnote, the Court notes that “The parties supply no concrete definitions for what constitutes a “sanctuary jurisdiction,” instead relying on Department of Justice (“DOJ”) or DHS designations of jurisdictions that allegedly fail to cooperate with at least some facet of federal civil immigration enforcement. The Court hereinafter uses the term “sanctuary jurisdictions” to refer to those DOJ or DHS designations, rather than to jurisdictions’ immigration policies.”
Here the Court is basically saying “There is no definition of ‘sanctuary jurisdictions’, but DOJ and DHS consider them to be ‘jurisdictions that allegedly fail to cooperate with at least some facet of federal civil immigration enforcement’ so let’s use their own words.”
Note the last bit of that footnote: “rather than jurisdictions’ immigration policies.”
Why this is important: so far as I know, this is the first court opinion to address the matter of “what is a sanctuary jurisdiction?”, which may mean that other courts will be looking to it. And here, the Court did *not* give it a legal definition, but rather a working definition for this case, *and*, and this is the important bit, in so doing the Court said what a sanctuary jurisdiction is *not*. It is *not* based on the supposed sanctuary jurisdiction’s immigration policies, or *any* characteristic of the jurisdiction. It is entirely all in the administration’s head, and just like an Executive Order is not law, so the administration saying “if you won’t play baseball by my new rules that I made up, I’m going to take my bat and go home” doesn’t mean those are now the *actual* new rules of the game.
This may turn out to be a VBD (very big deal). Of course it may not, it depends on whether other courts take the ball and run with it.
Regardless, in *this* ruling it is a big deal, as the Court has ruled that for the purposes of this case sanctuary jurisdictions are those which allegedly won’t play ball with DOJ / DHS when it comes to immigration enforcement. Which is, as the Court articulates, demonstrably why the administration cut the Homeland Security funding to Illinois and other blue states.
So for a concrete example, here in this case, Illinois v. Noem, Illinois is *not* being fingered as a sanctuary jurisdiction because of its own policies with respect to immigrants. Illinois is being fingered as a sanctuary jurisdiction because it won’t play nice with ICE. This is a very important distinction, because the Administrative Procedures Act (APA) doesn’t allow administrative agencies to make funding decisions on a whim or, as the Court says in more than one place, “capriciously”. The APA doesn’t allow funding decisions based on whether the administration likes the way that a state interacts with it. It’s kind of like a parent doesn’t get to choose to not feed their child because their child is being a brat. (Now do you see what it is important that the Court chose to use the administration’s own definition of ‘sanctuary jurisdiction’?)
The Court goes on to explain that “In the wake of the September 11 terrorist attacks, Congress authorized the Homeland Security Grant Program (“HSGP”) to strengthen national security through grant funding to state, local, tribal, and territorial governments… These programs collectively aim to strengthen the nation’s ability to prevent, prepare for, protect against, and respond to acts of terrorism and other threats.”
In other words, to strangle the metaphor, the parent not only chose to not feed the child, but also decided to put the child out in the street in the middle of a gang war, simply because the child was, in the parent’s view, being a brat, and not just being a brat, but being a brat about something completely unrelated.
Bottom line: summary judgment for the states!
This is a great way to start the new year!
COURT REJECTS TRUMP SUBPOENA TO CHILDRENS’ HOSPITALS DEMANDING RECORDS OF PATIENTS WHO HAVE RECEIVED GENDER-AFFIRMING CARE!! ALSO: LEARN A LITTLE LAW WITH ANNE
This is a spectacular smackdown, and it’s right in my back yard, I couldn’t be prouder. In August the Trump administration served subpoenas on Children’s Hospital of Colorado as well as several other hospitals across the country, demanding that the hospitals turn over patient records of patients for whom the hospitals had provided gender-affirming care.
The states that joined in this action, besides Colorado, include Massachusetts, California, Connecticut, Delaware, District of Columbia, Hawai‘I, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
But they didn’t join as plaintiffs because that’s not the sort of action this is. And here is where you learn a little law with me:
1. This is an administrative action, the action is called a Motion to Quash, which basically means “a motion to make something go away”. In this case Colorado Children’s Hospital is filing the motion to make the Subpoena go away.
2. This type of Subpoena is known as a Subpoena Duces Tecum, which means, in plain English, a Subpoena to force someone to turn over documents or other records. Duces Tecum is basically Latin for “you shall bring the thing with you”, and a Subpoena Duces Tecum is ordering the custodian of the documents to deliver them to the party issuing the Subpoena. (True story: lawyers can issue subpoenas, and the first time I issued a subpoena it felt very… weird. Like, “What? I get to do that??”)
3. This motion is filed before a *magistrate* judge (or just “magistrate”) of the District Court. The magistrate judge handles routine tasks such as pre-trial stuff, and administrative stuff. You can think of the magistrate judge as similar to a physician’s assistant, they can do a lot of things, but the ultimate decision on certain things is up to the physician. Similarly, the magistrate can do a lot of things, but for some things the final decision is up to the District Judge. That is the case here, which is why the opinion is called a “Recommendation” and at the end the magistrate”Recommends” that the Subpoena be quashed. (Hey, look at that, that last sentence included everything you just learned!)
Notes from the Front members: I am including the 23-page Recommendation, the actual Subpoena (28 pages), and the heavy-hitting brief that all of those states submitted (30 pages).
The Recommendation itself is a cheek-reddening (you choose which cheeks you want to apply that to), damning tear-down of the administration’s toothpick-thin legs upon which that Subpoena stands; and by the end of it the magistrate has reduced even those to mere splinters. Here’s a taste:
“The prima facie burden {to support such a subpoena} is not a heavy one – even “a simple affidavit of an agent involved in the investigation” will do, – but mere handwaving over the Fourth Amendment’s requirements cannot carry even that slight burden.”
And then “Even ignoring the government’s inattention to this requirement, an attempt at a self- guided tour through the Subpoena’s scope fares no better. Rather than limiting its request for patient data to some criteria relevant to an ostensible investigation into misbranded labeling, for instance … Requests 11 to 13 create a dragnet designed to sweep in all patient data related to any prescription of puberty blockers or hormone therapy.”
And finally (for now), “In short, the Subpoena never attempts to satisfy its burden as to limited scope, and the Subpoena evinces itself little effort to cabin itself appropriately.”
Ouch!
The bottom line is that there is *no* relevant Federal law that the hospitals were breaking, and on which to predicate the demand, let alone such a sweeping demand, for patient records.
The Recommendation sums up with “Congress has made no law authorizing an investigation of gender-affirming care, let alone one aimed at ending such care. Such an investigation, then, is no faithful execution of any law. Indeed, Colorado law makes such care legal, and “an investigation predicated solely upon legal activity does not pass muster under any standard…. For the foregoing reasons, the Court RECOMMENDS that the petitioner’s Motion to Quash Subpoena be GRANTED.”
And you now know what all that means!
COURT ISSUES TRO TO STOP TRUMP FROM WITHHOLDING TEMPORARY ASSISTANCE TO NEEDY FAMILIES, CHILD CARE DEVELOPMENT, AND SOCIAL SERVICES BLOCK GRANT FUNDS!
Last night a Federal court in New York issued a Temporary Restraining Order (”TRO”) *halting* the Trump administration from blocking 5 states’ access to *$10Billion* in social services funding for the neediest Americans. Those funds are from the Temporary Assistance to Needy Families fund, the Child Care Development Fund, and the Social Services Block Grants fund.
Guess which five states they are? That’s right:
Minnesota, Colorado, California, New York, and Illinois.
Thank you, Judge Subramanian!
___
And that’s the good news from the past week!
Remember, if you are a Notes from the Front member *all* of the original source documents (transcripts, orders, and the like) are in the archives here. If you’re not a Notes from the Front member yet, please consider joining us! It’s only $5 a month, and with it you get all of the documents that are included with each article, access to our private chat, the podcast, and more! You can cancel any time. Join here
This is me, reporting from the front line of the battle to save the soul of our country.
Anne
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