Second Amendment Roundup: Supreme Court Should Hold its Decision in VanDerStok

The new Administration should notify the Court of its change in position on ATF regulations.

As of now, of the nine cases argued in the Supreme Court's October calendar, five have been decided.  Still pending is Garland v. VanDerStok, which was argued on October 8.  Before rendering a decision, the Court should give the Trump Administration an opportunity to express its views of the case with the Court.  It's a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) redefining and expanding the definitions of "firearm" and "firearm frame or receiver" that criminalizes conduct not made unlawful by Congress, with Second Amendment implications.

The new Administration is sure to hold views adverse to those presented by the Biden Administration. Indeed, the Plaintiffs' arguments in the case are similar to those made by DOJ in defense of the previous, longstanding regulatory definition of "firearm" before the Biden Administration upended that definition in the Rule.

On February 7, the President issued the Executive Order Protecting Second Amendment Rights directing the Attorney General to examine all regulations and other actions of executive departments to assess any ongoing infringements on Second Amendment rights and to propose a plan of action to the President to protect those rights.  That includes rules promulgated by ATF and the positions taken by the United States in ongoing litigation that could affect the ability of Americans to exercise their Second Amendment rights.

Prompted by the Executive Order, Senator John Cornyn (R-Texas) and 29 other U.S. Senators wrote to ATF Deputy Director Marvin Richardson requesting that ATF immediately rescind several regulations promulgated by the Biden Administration, including the "so-called 'ghost gun' rule, which cracks down on law-abiding hobbyists who are exercising their Second Amendment rights to privately build firearms—a longstanding tradition that traces back to the Colonial Era."  That's the rule at issue here.

If the Supreme Court is on the verge of issuing an opinion in VanDerStok, it should delay to give Acting Solicitor General Sarah Harris an opportunity to review the matter and advise the Court of the new Administration's position.  That office must be overwhelmed by the deluge of cases in which the district courts are enjoining actions of the President, such as the DOGE efforts to weed out fraud and abuse from the executive branch and the effort to exclude birth-right citizenship to unlawful aliens and temporary visitors.

The SG's Office should act quickly to ensure that the Court is advised of the Administration's views on VanDerStock.  If it doesn't make this a top priority, it risks a decision that is uninformed by the Executive Branch's position on a constitutional right exercised by millions of Americans.

The Department of Justice has already taken steps to ask courts to put cases on hold to give counsel an opportunity to advise the courts on the government's position consistent with the Executive Order.  In Colon v. BATFE (11th Cir.), a challenge to ATF's pistol brace regulation, DOJ filed a motion to postpone the oral argument scheduled for March 5 and to hold the appeal in abeyance.  Similarly, in Kansas v. U.S. Attorney General (D. Kansas), involving ATF's "engaged in the business rule," the DOJ submitted a brief requesting that the Court stay the case, including all deadlines on pending motions, in light of the Executive Order.

In VanDerStok, the Department of Justice should promptly file a letter to notify the Court that the position of the United States has been reconsidered and that the government's previously stated views no longer represent the United States' position.  It recently filed such a letter in United States v. Skrmetti, advising the Court that the new Administration would not have intervened to challenge Tennessee's ban on gender-altering medical "experimentation" on minors.  The letter did not seek further "likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit."

Here, it is unlikely that the Court would accept any further briefing from the United States, which in any event would likely duplicate the excellent briefing from the respondents and their amici.  I commented on two of such amici briefs here and here (which I coauthored).  Whatever alternative the Acting Solicitor General chooses, she should notify the Court quickly of the government's change in position.

For a comprehensive review of the issue on the merits, see my article "The Meaning of 'Firearm' and 'Frame or Receiver' in the Federal Gun Control Act: ATF's 2022 Final Rule in Light of Text, Precedent, and History."

 

 

Comments

[Phanatic]

"The new Administration is sure to hold views adverse to those presented by the Biden Administration."

Why do you say this? The bump stock ban came from Trump. He's no friend of the 2A.

[Brett Bellmore]

That's true, he is NOT a principled pro-gunner. The last one of those in the White house was, maybe, Ronald Reagan. Maybe.

OTOH, he did wait until the NRA said it was OK. Which makes him less of an anti-gunner than anybody who has served in the White House since, again, Ronald Reagan. It actually makes it more of an NRA betrayal than a Trump betrayal, and, yes, NRA members were PISSED at the NRA leadership.

[ThePublius]

"The last one of those in the White house was, maybe, Ronald Reagan. Maybe."

No.

"In 1967, California Governor Ronald Reagan signed the Mulford Act, which banned carrying loaded firearms in public without a permit. The Mulford Act was California's first major gun control law."

[Kazinski]

Roberts is up late tonight:

https://www.msn.com/en-us/news/politics/the-supreme-court-just-handed-the-trump-administration-a-win-on-usaid/ar-AA1zSuLp

And he's had enough.

[Stephen Lathrop]

. . . including the "so-called 'ghost gun' rule, which cracks down on law-abiding hobbyists who are exercising their Second Amendment rights to privately build firearms—a longstanding tradition that traces back to the Colonial Era."

Had any such notion existed during the American Colonial Era, Ben Franklin must get place as a leading example of a Colonial, "hobbyist." But alas for Halbrook, no one thought of Franklin that way, any more than anyone then could have comprehended a notion such as, "ghost gun."

[Kazinski]

Ummm, they were almost all ghost guns, although I suppose some gunmakers engraved their names on them.

[Aubrey LaVentana]

"Efforts were also implemented to make use of the limited production capabilities within the colonies. An estimated 2,500 to 3,000 gunsmiths were available, of which perhaps two-thirds favored the American cause (Moller I). Early in 1775, local 'committees of safety' were already placing orders with those makers.
Some modern collectors describe all American Revolutionary War muskets as 'committee of safety' guns. This term should only refer to those arms produced under a 'committee' contract. Few survived, and most were not identified by the makers who feared retaliation by royal authorities."

"The great majority of surviving muskets manufactured by the Colonists are not identified by their maker or source. Yet a number of the states did, at times, stamp their issued arms to indicate ownership especially early in the war. These included, “MB” or “CMB”, Massachusetts; “SC”, Connecticut; “CR”, Rhode Island; “PP” or “P”, Pennsylvania; “JS” or “PS”, Maryland; “SP”, New Jersey; “NH” New Hampshire; “CN”, New York; and “SGF” (State Gun Factory), Virginia. "

https://www.americanrifleman.org/content/american-muskets-of-the-revolution/

[Stephen Lathrop]

LaVentana — Let's see the specifics on that estimated number of gun makers, together with evidence they were all alive and active at any given time. I doubt that is an accurate number, even for all the colonies taken together, during the entire interval from 1607 to 1775. Prove me wrong.

One thing modern gun enthusiasts forget is how few colonists were available to make anything. You can be certain, for instance, that urban areas numbering a few tens of thousands of people, of all ages and both sexes, did not employ hundreds of gunsmiths each. And if they did, you would not have even a third of the number you cite. One thing we think we know for certain is that at the outset of the Revolution, there was exactly one powder mill active in all of the colonies. It was located in Pennsylvania, and could not begin to supply enough gunpowder to sustain the needs of Washington's army, which at its most numerous numbered approximately 20,000 at Valley forge.

Before you start, let me caution you away from an unreliable line of reasoning which you might be tempted to apply. Do not begin with an assumption of any known number of guns, and then work backward to deduce the number of gunsmiths necessary to make them. That would be question begging.

Instead, count by means of actual records, one by one, each gunsmith you assert there was in the colonies. Note when, where, and during what time intervals they made guns. That is how respectable historical research would answer my challenge.

I will give you a bit of help to start you off. One of Bellmore's favorite cites, Tench Cox, was an heir to a family which supplied guns to colonial militias. Find out how many gunsmiths they employed. Then find out how many comparable suppliers existed, telling when and where they were active.

Good luck. If you can accomplish that, you will be launched on a respectable career as a historian.

[Absaroka]

The record you are after is how many manufacturer's licenses the colonial governments issued, and how many arrests they made for unlicensed manufacture.

[Brett Bellmore]

Since you didn't need a license to manufacture firearms, that's zero and zero. As you'd expect, Lathrop is assuming he's right barring production of records he knows won't exist.

Now, powder was a completely different issue, as its manufacture and storage represented a public hazard. That was definitely regulated.

But on a public safety basis, not a gun control basis.

[Stephen Lathrop]

The record you are after is how many manufacturer's licenses the colonial governments issued, and how many arrests they made for unlicensed manufacture.

Absaroka, that is just you joining Clarence Thomas to insist that present-minded history is the only way to go.

The only arguably relevant counterpart I can think of in 18th century context would be laws against counterfeiting—a notion which survived into the present, but which remains recognizably separate from notions of criminal law control of manufacturing activities.

To be sure, there were 17th and 18th century criminal controls applied to commercial activity in a different context—one which our society pretty broadly rejects—to privilege legally imposed commercial monopolies as a royal revenue prerogative. I see no analogy with those in what we are discussing now. Do you?

[Absaroka]

"laws against counterfeiting"

I'll grant the point: if I am manufacturing rifles in my basement and selling them as genuine Remingtons, I can (and should!) get into trouble for trademark infringement or whatever, just as if I was selling fake Rolexes.

[Satchmo_Lives]

Stephens' reply to unlicensed guns being produced in the 18th century:

Prove to me there were X number of gunsmiths and not Y number of gunsmiths.

[Stephen Lathrop]

Kazinski — They were not, "ghost guns," after they were noted in militia muster records. That would be paradoxically like insisting that today's would-be ghost guns be subject to universal registration.

The historical question, however, goes deeper. Founding era thought encompassed no notions corresponding to today's ideas about gun control. To the extent gun records were kept at all, it was in military context.

To the extent that guns were controlled (as they often were)—or in some instances seized by governments—entirely arbitrary court orders and actions were routine. Those were mostly unappealable anywhere.

Those are generalizations at least somewhat valid across pre-revolutionary time frames, and among most of the colonies. But accurate history would have to insist on specifics, because during a past so long, and so variable in culture and geography, exceptions abound.

About the only exceptions you would never find are the ones you rely upon, having to do with stuff you got in your head by reliance on occurrences which happened—from the point of view of the history you pretend to cite—in the unknowable future.

You and Halbrook rely on a present-minded notion with no counterpart in historical context. Whatever that is, it is not history. It is you guys making up stuff about the past, based on what happens today. And then attempting to give that made-up stuff historical dignity.

As almost always happens with such present-minded speculation about the past, the folks who do it have no notion even that they are making things up. They just assume the past is what they say it was, without ever doing any research to find out. Typically, they also have no notion that methodological standards govern historical research—to prevent this kind of useless and inaccurate speculation—and quite often no notion that any such standards even exist—Scalia in a nutshell.

[Absaroka]

"To the extent that guns were controlled (as they often were)—or in some instances seized by governments—entirely arbitrary court orders and actions were routine. Those were mostly unappealable anywhere."

Some of the founders of this country rather famously appealed that at Lexington and Concord.

[Stephen Lathrop]

Absaroka, you may think that is clever, but it begs the historical question.

Lexington and Concord was military action, neither enabled by lack of civilian gun control, nor an example of rebellion against civilian gun control. To suggest otherwise is absurd conflation, because a notion of bureaucratic civilian gun control had yet to evolve. Judicial gun control, on the other hand, was a long-standing practice, as I said, and also as I said, an arbitrary one. It was a centuries-old feature of the English common law tradition—along with all kinds of other arbitrary judicial impositions.

You cannot make a meaningful historical point against today's gun control controversies by citing centuries-old military history which not only had nothing to do with today's issues, but which also lacked means even to contemplate them.

[Absaroka]

The government of the day asserted that it got to decide who did or did not possess guns (cannons, ...). The people disagreed, and carried their point.

But that is about possession, and so not really relevant to the question at hand, which is whether the government required licenses for manufacture, even commercial manufacture, of guns.

I think there is general agreement that guns were manufactured in this country prior to 1968. Finding records of people or firms being licensed, or records of prosecution for unlicensed manufacture ought to be easy enough, if your view of history is correct.

[Brett Bellmore]

I think he wants to put the burden of proof on those who disagree with him, though.

[Aubrey LaVentana]

"Lexington and Concord was military action, neither enabled by lack of civilian gun control, nor an example of rebellion against civilian gun control. To suggest otherwise is absurd conflation"

What order were the British troops carrying out?

[Stephen Lathrop]

Not a court order. Nothing to do with the British constitution. Just a military order. To do the kind of arbitrary forceful actions to which armed force is suited.

What were the colonists doing? Military resistance. Nothing to do with law. Nothing to do with the British constitution. They were instead opening an armed contest for sovereignty over the colonies jointly—but even that was not fully evident at the time, not even to Paul Revere.

[Incunabulum]

Uhm, Lexington and Concorde were civilian actions by 'unlawful combatants' (to use the modern parlance - not soldiers of a recognized nation-state) as there was no nation for the rebels to be soldiers of.

Technically, America was founded by terrorists.

The Revolutionary War was not fought by soldiers on the American side.

[Stephen Lathrop]

You think Washington and Hamilton thought they were leading terrorists?

[Brett Bellmore]

"Founding era thought encompassed no notions corresponding to today's ideas about gun control."

That's not exactly true. They did have notions corresponding to today's ideas about gun control: It's just that they understood "gun control" to be an evil that should be prohibited, rather than a legitimate government policy.

[Joe_dallas]

SL 's comment - To the extent that guns were controlled (as they often were)—or in some instances seized by governments—"

SL - The confiscation of guns by the British prior to the revolutionary war is one of the reasons for 2A . ie to protect the peoples right to keep and bear arms.

[Aubrey LaVentana]

Ben Franklin didn't dabble in making them. He did what he knew best.

"American agents, such as Benjamin Franklin, Silas Deane and Arthur Lee, also arranged large private deliveries of assorted armaments from Europe’s professional arms dealers."
https://www.americanrifleman.org/content/american-muskets-of-the-revolution/

[Stephen Lathrop]

LaVentana — Good historical thinking. And much more to the point. Note that by confining yourself to historical accuracy, you have removed your argument beyond the reach of the ghost gun context.

[Stephen Lathrop]

LaVentana, a caution for you. Don't rely on alleged history presented by americanrifleman.org, when you can readily find less biased and more dispassionate accounts by better historians.

Edmund Morgan's superb biography of Franklin discusses that bit of history at considerable length. He shows evidence that Deane's role was played ineptly, and hampered Franklin's efforts to get arms for the colonies. Deane tried to negotiate competing deals with the same officials Franklin had long cultivated. Some of those competing deals were intended to serve just one colony—South Carolina, if my memory serves, which it may not. Franklin's mission and intent was to get arms for Washington's army, defending the colonies as a whole.

Arthur Lee, on the other hand, tried actively to undermine Franklin, not just compete with him. Thanks to Lee's connivance with a French privateer, a ship being loaded with arms Franklin's efforts had half-filled, slipped away in the dead of night, with the result those arms were lost to the colonies at a critical juncture.

[Krayt]

A couple of years ago, there was a hit Indian movie, RRR. It was a tale of two mythological heroes (mythologized actual heroes) opposed to each other, who become friends, then work together to defeat the evil British colonial empire. It very loosely follows an actual historical event, but, as they say, "with writer's embellishment."

The actual task, though, was stealing guns so the Indians could mount an effective resistance, the guns being forbidden to Indians in their own country, so they could not resist.

It's also insanely over the top fun. As one reviewer said, if you have a chance to see it and don't, you are actively deciding to live a worse life.

[Aubrey LaVentana]

"Lexington and Concord was military action, neither enabled by lack of civilian gun control, nor an example of rebellion against civilian gun control. To suggest otherwise is absurd conflation"

What order were the British troops carrying out?

[Aubrey LaVentana]

"Don't rely on alleged history presented by americanrifleman.org"

'dismiss the opponent's citations as biased and unscholarly. A sniff of disdain is customary with this tactic'

and unscrupulous maneuvers between Colonial businessmen don't undermine the point. You brought up Franklin, not I.

[Absaroka]

I think the 'hobbyist' distinction misses the point. Generally speaking, the people making Pennsylvania/Kentucky rifle were gunsmiths, not Farmer Bob in the off season, but we're not talking big factories, they were "made entirely by hand and hand-operated tooling, in a frontier setting".

Even much later, when big factories and mass production were a thing, you could make guns in pretty small shops. That is JM Browning's shop, which produced a few guns, and my basement has a lot better shop than that (although, alas, much less genius).

More to the point, what level of government permission did the makers of Pennsylvania rifles or JM Browning need before building their latest project? I believe the answer is ... none. That even a gun factory needs governmental permission is a recent innovation - 1968, to be precise.

[Brett Bellmore]

I think the point here is that today's hobbyists are doing basically what the professional gunsmiths were doing then, only with the advantage of better tools.

And the opposition to 'ghost guns' comes from a perfectly understandable source: The fear that privately manufactured guns make disarming the population even harder than it already was. But this wouldn't have bothered the founders, who saw disarming the population as an illegitimate goal for government.

[Stephen Lathrop]

But this wouldn't have bothered the founders, who saw disarming the population as an illegitimate goal for government.

Centuries of English common law, and parallel colonial practice, refute that assertion. The English tradition never focused on anything like universal gun rights; it was all about which portions of the population to disarm.

That question might have been answered variously, during different times and at different places, but the answer almost always turned out to be, "Most of them."

[Brett Bellmore]

“Novus ordo seclorum”, Lathrop: The founders deliberately repudiated some aspects of English legal history, and this is one of them.

You're fighting a losing fight here, and especially so if you're appealing to history, because the historical sources on the founders' attitude towards guns are so clear.

Remember, Bellesiles was a fraud, and there's a reason he needed to commit fraud to advance his thesis: Because it was FALSE.

[Joe_dallas]

SL - you are missing key points in the historical record. The british liked to control arms. The colonists didnt like the british controlling arms. Thus one of the reasons for 2A. Considerable historical record on the subject

[Stephen Lathrop]

Joe_dallas, the colonists prior to the revolution identified overwhelmingly as British. Unsurprisingly, that resulted in widespread colonial legal practice largely identical to British norms.

You are right, of course, that even in colonial times colonial political leaders preferred to control arms themselves. Especially in preference to letting the King do it.

At a time shortly after Bacon's Rebellion in Virginia, the King issued a royal proclamation, directing Virginia to arm all its white freemen. Despite the King's ribbon-bound parchment, borne back to the colony by one of Virginia's most effective former governors, Virginia's government told the King to pound sand.

On no account was the Virginia government willing to permit the general arming of white freemen, whom Virginia's aristocratically-styled government then regarded as class enemies. And so it remained, until practice of black slavery had largely replaced menial field work by whites.

Thus was born America's celebrated militia tradition, when it became necessary finally to arm the white rabble, while keeping them under deadly discipline. How else to provide a counter-force to prevent the blacks from armed revolt?

Actual history is rarely much like the plausible-sounding narratives cooked up as substitutes. The latter tend to express present aspirations, which their authors want to dignify as long-practiced, and thus proved useful and reliable. That isn't always ridiculous, until it gets mistaken for historical fact upon which to base modern-day legal outcomes.

[Absaroka]

1)Being a stickler for sourcing, I suppose you have one showing that in the late 1700's colonial law only allowed firearm ownership by a select few white colonists?

2)Even if you did, I don't find arguments of the form "colonial slaves (servants, women, ...) were not allowed X, therefore no one has a right to X today" persuasive, whether X is owning guns or owning property in general or voting. I aspire to a life with more freedom than slaves were granted.

Anyway, I'm off to the hills for a bit!

[Incunabulum]

No, he doesn't.

He's repeating the 1699 Project level nonsense that freedom of self-defense was only created to protect slavery - despite slavery not being present in the majority of the US at any time in its history.

'But muh slave patrols!!1111!!'

[Joe_dallas]

SL
You are getting facts correct but grossly miss interpretation of the facts.

It was the British control and confiscation of guns that justified the individual right protected in 2a as opposed to your interpretation justifying gun control because the British did it in colonial times.

[Stephen Lathrop]

Joe_dallas — I am in no way attempting to justify gun control because the British did it in colonial times.

I am critiquing fake originalism as a justification to support a Supreme Court decision which purports to put gun control off limits. If that is what Congress decides is necessary today, there is nothing in the history and tradition of the United State, nor in the historical record of the 2A, to empower the Supreme Court to say otherwise.

There is historical tradition found in state constitutions which might arguably limit congressional discretion to do that, based on federalist principles. I think that is the issue anti-gun-control advocates ought to focus on. To do it, they would have to be ready to concede gun rights might differ from state to state, except for the militia right. That is the one federal gun right which actually is in the Constitution, which actually did get ratified, and which thus applies nationally.

[Joe_dallas]

Stephen Lathrop 1 hour ago
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"I am critiquing fake originalism as a justification to support a Supreme Court decision which purports to put gun control off limits."

No - what your are doing is creating a fake historical analysis to attack a fake interpretation of Heller, mcdonald and bruen. Your historical analysis is as bad or worse than Stevens (though scalia's historical analysis in Heller was very good either, though reasonably close on the individual right )

[Stephen Lathrop]

Joe_dallas — So there it is. Full circle. You measure the quality of the historical research by whether it comes out where you want it.

[Krayt]

One of many other examples of the British empire not wanting locals to have guns, to thwart resistance.

[Incunabulum]

We don't, you know, actually care about English Common Law.

There are parts of it that *inform* American jurisprudence but it doesn't all carry over whole into the American legal system.

That *the British* considered it acceptable to disarm its citizenry means nothing with regard to whether or not that that is acceptable in the United States - in the modern day or at the time of founding.

[Stephen Lathrop]

Incunabulum — I agree with that almost completely, with the reservation that lawyers find reason to argue English common law has been incorporated in the United States Constitution. During gun debates, I am more inclined to disregard that than otherwise.

But it is equally unreasonable to conclude on that basis that the Supreme Court has ever made a coherent case against Congressional power to legislate gun controls consistent with the militia right. I think such a case maybe could be made, based on different rules in different states, per state constitutions. But that has not happened, probably because of misguided struggles to exclude from the controversy anything but a one-rule-for-the-entire-nation approach.

[dwb68]

Not sure I agree. Vanderstock is likely to cabin ATF rule making authority.
Remember, the Trump Administration gave us the bump stock rule. It's fealty to the Second Amendment shifts with the wind.

[Brett Bellmore]

As I said above, it's true that Trump is not a principled 2nd amendment defender.

Rather, he approaches the issue without any pre-existing devotion to gun control, which by itself makes him better on the subject than any other President in the last 36 years. And with a pragmatic desire to make his constituents happy, understanding that making his foes happy is a lost cause.

As he doesn't have a lot of gun control supporters among his constituents, this actually makes him pretty good on gun rights. Not perfect; I don't expect him to go after the NFA, for instance, which an actual principled 2nd amendment defender would.

I guess you could say that his fealty to the Second amendment shifts with the wind, but that wind is a steady hurricane force gale.

[dwb68]

Hes a dealmaker and wants to be seen making deals. Also, he's a lame duck. He'll agree to put semi-autos on the NFA in a New York minute if there is another Las Vegas type massacre, and footnote 9 of Bruen will let him do it.

[Brett Bellmore]

He wants to finish up with a positive reputation, and that the left will retain a negative opinion of him is already totally guaranteed, so the only people he can hope to be remembered well by are the right.

So he's NOT going to be sucking up to the left. That would just guarantee that he'll leave office hated by everybody, instead of half the population.

[Michael Ejercito]

Massacres keep happening in inner city neighborhoods, though.

[Incunabulum]

Only 1 or two people at a time. And they're all poor. Plus, they're 'devoted' Democrats - or at least were, now they voted for Trump so the excuse will be 'screw 'em' - so why would the D's care what happens to them?

[MollyGodiva]

The court delaying their ruling because the political party of the administration changes is distasteful. The rulings should not depend on politics.

[Lee Moore]

Leaving aside the politics, it seems odd that the court should delay its ruling in any case because one of the parties says it's thinking about changing its mind.

Isn't the usual scheme for the parties simply to say to the court "we've reached an agreement out of court, sorry to have troubled you" ?

[Longtobefree]

Well, gee. Maybe the supremes could just read the US Constitution.
You know, the "shall not be infringed" part.

[Incunabulum]

I don't know.

On the one hand I understand that a change in the government's position could render the question moot.

On the other . . . well that's just kicking the can down the road. The next administration could go back. Better to settle the core question 'can the ATF make up its own definition of 'firearm'' which will inform the current administration's policy going forward.

[Dco777]

No, no NO, NO. NO!!! If the SCOTUS drops the decision as "Moot", on January 20, 2029 we could be ag the same place as January 20 2021 with a new President nullifying ALL of the previous EO's of the last President.

Let them either support Biden's DOJ (Unlikely) position or blow it up. That way it won't be back in that form.

I am sure a defiant enough Administration might just go back to the sane position again anyway, but so.e Federal judges will toss it right back out, depending on the Vanderstok Decision.

Don't have them table and never issue it as "Moot". They heard, and nay have completely written it. Let it be issued.

The current Administration's position is only good as long as this Administration is in charge. Don't allow the next Administration leeway to just reimplement it, with a hostile SCOTUS behind it in the future.