The Inexorable Command of Party Presentation?
Exploring the Threshold Question in Trump v. Illinois
Orders of the Supreme Court on the interim docket are sometimes fast and sometimes consequential. In Trump v. Illinois, the lower federal courts had restricted the President’s ability to deploy the National Guard in the city of Chicago. The Solicitor General requested a stay of that injunction from the Supreme Court; after two months of deliberation and further briefing, this week the Court denied the stay.
A lot of things are complicated about this case. Justice Gorsuch begins his dissent by asking a number of compelling questions. These questions represent exactly the kind of pathless wilderness where Supreme Court justices, without full-dress briefing and oral argument, would be expected to fear to tread. Moreover, it’s hard to put together all the different pieces of the statues regulating the National Guard and restricting the deployment of the military for domestic purposes, along with the relevant provisions of Articles I and II of the Constitution. And they can certainly be put together in different ways, especially if one starts with the premise that presidential deployment of the National Guard is strongly preferable to presidential deployment of the U.S. military in domestic settings.
Of course, statutory interpretation is like the familiar joke about the two guys who are running away from a bear when one of them stops to put on his track shoes—an interpretation need not make perfect sense of every bit of textual data and structural inference, as long as it outruns the rival interpretations. And the majority’s suggestion about how the different pieces are “likely” to fit together—a sound caveat given the preliminary injunction posture1—seems to me to be at least as good as any other way of putting the pieces together. The majority is right to try to read the statutory provisions harmoniously, giving a coherent interpretation to “execut[ing] the laws” across those provisions. Once you conclude that “the regular forces” are the U.S. military and strive for consistency in reading “execut[ing] the laws,” it is not hard to arrive at the majority’s interpretation.
But the threshold question is whether the Court can even get to that interpretation. The statute restricts the President’s deployment of the National Guard domestically unless “the regular forces” are “unable” to execute the law. The district court concluded that “the regular forces” are the U.S. military, but the court of appeals did not adopt that reading, and neither party advanced it at the Supreme Court. That reading was advanced, however, in an amicus brief by Professor Marty Lederman (available here), which was so persuasive that the Court then ordered additional briefing by the parties about the meaning of “the regular forces” (available here, here, here, and here). That reading of “the regular forces” as the U.S. military was important for the Court’s resolution of the stay request.
The lengthy dissent by Justice Alito, joined by Justice Thomas, rests primarily on the premise that the Court should not have adopted a reading of “the regular forces” that was not advanced by the parties (i.e., before the parties filed their additional briefs at the Court’s request). In other words, the party-presentation principle requires the Court to interpret the statute as allowing the President to deploy the National Guard whenever federal law-enforcement officers—including U.S. Immigration and Customs Enforcement (ICE) agents—are “unable” to execute the law. That reading of “the regular forces” would make the President’s arguments in the case much stronger. So a lot turns on whether the parties’ arguments have the effect of boxing in the Court, requiring the justices to read “the regular forces” as law-enforcement officers, regardless of what they think is the best reading of the statute.
The nomenclature of the party-presentation principle is not ancient, but the idea is deeply embedded in the common law. At common law, “[t]he case is what determines the scope of the judicial action, and the existence and scope of the case are to a substantial degree controlled by those parties.”2 Justice Alito is therefore correct to think this principle is part of the basic practice of the federal courts. Even so, in my view the justices in the majority were correct to think their hands were not tied by the parties’ initial briefing on “the regular forces.”
Consider seven propositions:
The party-presentation principle cannot force the Court to misread a statute.3
The party-presentation principle counsels more caution for a question that has not been briefed. But here the Court explicitly requested and received briefing from the parties about the meaning of “the regular forces” and the implications of that meaning for the interpretation of the statute.
The party-presentation principle counsels more caution when an argument has not been made by anyone in the litigation. But here it was advanced in an amicus brief. Unless we are going to treat all amicus briefs as worthless, the more accurate label might be “the party-and-amici-presentation principle.” (This proposition is reinforced by the Court’s practice of appointing counsel to advance arguments that are essential to the litigation but not advanced by the parties.4 If the justices were unable to consider arguments raised by such appointed counsel, what would be the point?)
The party-presentation principle has little force for arguments that have already appeared and been judicially adopted in the instant litigation. Here the Court’s interpretation of the statute had already been adopted by the district court.
The party-presentation principle is relaxed in equity. As Will Baude and I put it in When the Executive Has Unclean Hands, “The court may protect itself by invoking the [unclean hands] doctrine sua sponte. This is one manifestation of equity’s tendency to have a weaker party-presentation principle than law.” Our citation on this point is to an excellent preliminary injunction opinion by Judge Flaum: “See, e.g., Abbott Lab’ys v. Mead Johnson & Co., 971 F.2d 6, 22–23 (7th Cir. 1992) (encouraging a lower court to reject the parties’ extreme litigating positions on a preliminary injunction and instead pursue its own path).” And equitable principles are directly relevant in Trump v. Illinois, because the case is about the stay of (and thus, in effect, the modification of) an injunction.
None of the justices consistently applies an ironclad party-presentation principle. As Jason Willick noted, although Justice Alito is arguing that the Court is unable to consider an argument not advanced by the parties in Trump v. Illinois, in the oral argument in the tariffs case just a few weeks ago Justice Alito “proposed sustaining Trump’s tariffs based on a Section 338 argument the government never raised.”
The party-presentation principle counsels more caution for judicial action than for judicial inaction. It can make a lot of sense for a judge to say, “None of you made the right argument here, so I’m not going to do anything for anybody.” Just leave things as they are. But it is less reasonable to think that because the parties failed to suggest what is likely the correct interpretation of a statutory provision, the Court is therefore required to take (what should be) an extraordinary action. And here Justice Alito’s dissent is arguing that the party-presentation principle requires the Court to ignore the most likely interpretation of “the regular forces” and, based on that likely misinterpretation, take the extraordinary action of staying a lower court’s injunction.
That final point circles back to the good questions raised by Justice Gorsuch in his dissent. In the face of so much uncertainty about how to read the relevant statutes, one reasonable approach for the Court is to avoid acting, thus giving the lower courts more room to work it out in the first instance. That might be the way to understand Trump v. Illinois.
Jack Goldsmith has an excellent post about the denial of the stay at Executive Functions, yet I am skeptical about one point. He writes: “Because the Court’s interim orders have vertical precedential effect, yesterday’s order should end the government’s § 12406(3) National Guard call-up not just in Illinois but in California and Oregon too.” I’m not sure that’s obvious. The precedential force of the Court’s interim docket orders is not firmly settled.5 The denial of the stay in Trump v. Illinois could signal that the Court is going to affirm any lower court orders that restrict the President’s deployment of the National Guard and reverse any lower court orders that go the other way (i.e., reverse any district court order that allows presidential deployment of the National Guard to support immigration enforcement, at least outside of the District of Columbia). Or not. The stay denial in Trump v. Illinois could simply be a signal that the Court is going to allow the lower federal courts to decide these cases as long as they show their work and reach reasonable conclusions. As to what those conclusions are, for right now there may be some play in the joints.
Whatever may be the Court’s ultimate resolution of the statutory interpretation puzzles implicated by Trump v. Illinois, the party-presentation principle does not require the Court to go down a difficult path that it thinks is the wrong one. Like stare decisis, party presentation “is not an inexorable command.”6
See Samuel L. Bray, The Purpose of the Preliminary Injunction, 78 Vand. L. Rev. 809 (2025).
The quote is from The Concept of the Common Law. For an extensive argument that party control is a defining characteristic of the common law, see Ronald J. Allen & Paul Piazza, The Common Law as a Complex Adaptive System, 62 San Diego L. Rev. (forthcoming 2026). On the historical roots of the party-presentation principle, see Owen B. Smitherman, Grounding the Party Presentation Principle, 101 Notre Dame L. Rev. (forthcoming 2026).
Note the counter-argument offered by Gary Lawson in Stipulating the Law, 109 Mich. L. Rev. 1191 (2011). Lawson recognizes, however, that “from the standpoint of established practice” the parties are not permitted to stipulate to the law and thus bind the court to their stipulations. Id. at 1195.
Adam Liptak described this practice in his 2010 N.Y. Times piece “Court Chooses Guardians for Orphaned Arguments.”
There is one phrase about their force for exercises of “equitable discretion” in Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) (grant of application for stay). Compelling arguments, albeit before Boyle, are offered in Bert I. Huang, The Foreshadow Docket, 124 COLUM. L. REV. 851 (2024) (reviewing PHILOSOPHICAL FOUNDATIONS OF PRECEDENT, edited by Timothy Endicott, Hafsteinn Dan Kristjánsson & Sebastian Lewis). The tensions in the Court’s now-it’s-precedential-now-it’s-not treatment of interim docket orders can be seen in footnote 3 of Justice Kavanaugh’s concurrence in the judgment in Trump v. Illinois.
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 262 (2022) (citation and internal quotation marks omitted).
The visceral common sense of that is so strong—the Court should not decide a case on grounds it thinks are wrong just because the parties didn’t make the right argument—that it makes you wonder if Justice Alito really believes what he says. This Supreme Court action has
given enormous relief to people who’ve worried the Court really was operating on what Justice Kagan called the principle that the President always wins. Possibly some—but not a critical majority—are.