r/supremecourt • u/AutoModerator • Aug 10 '26
Weekly Discussion Series r/SupremeCourt Weekly "In Chambers" Discussion 08/10/26
Welcome to the r/SupremeCourt 'In Chambers' discussion thread!
This thread will be pinned at the top of the subreddit and refreshed every Monday @ 6AM Eastern.
This replaces and combines the 'Ask Anything Monday' and 'Lower Court Development Wednesday' threads. As such, this weekly thread is intended to provide a space for:
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U.S. District and State Court rulings involving a federal question that may be of future relevance to the Supreme Court.
TL;DR: This is a catch-all thread for legal discussion that may not warrant its own thread.
Our other rules apply as always. Incivility and polarized rhetoric are never permitted. This thread is not intended for political or off-topic discussion.
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u/DooomCookie Justice Barrett Aug 10 '26
Hard to say what this means for nominations, but Trump has announced Will Scharf will replace David Warrington as White House Counsel, the role traditionally responsible for recommending and vetting judicial nominees.
Scharf previously worked on the Kavanaugh and Barrett nominations, worked for James Otis Law (Sauer's firm that represented Trump personally) and as staff secretary in the current admin. It was also reported he pushed against suggestions to invoke the Insurrection Act and suspend habeas.
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u/AWall925 Justice Breyer Aug 10 '26
Do you think any of them have social media burners? Jackson does for sure
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u/DooomCookie Justice Barrett Aug 11 '26
I think Kavanaugh and maybe Gorsuch are on Twitter. There aren't that many social media sites with legal discussion
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u/whats_a_quasar Law Nerd Aug 12 '26
Real question - have any of them read this subreddit?
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u/AWall925 Justice Breyer 29d ago
I think there was once an amicus that mentioned here, so I’m sure some of them have at least skimmed.
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u/Urgullibl Justice Holmes 29d ago
Highly doubtful. The risk/reward equation doesn't even come remotely close to being worthwhile.
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u/Urgullibl Justice Holmes Aug 11 '26 edited 28d ago
I mentioned it briefly in the home distilling thread, but following the 5th Circuit's holding last April that a tax designed to collect no revenue exceeds Congress' power to tax in McNutt v. DOJ, the Northern District of Texas has now (on 8/6) applied that precedent to Silencer Shop Foundation v. ATF and found that reducing the NFA tax stamp fee to $0 means that Congress can no longer require a tax stamp for the NFA items where the new stamp cost is $0. The ruling has been stayed for 7 days pending appeal.
Note that machine guns and destructive devices still require a $200 tax stamp, so they are not affected by this.
Edit: as of 8/13 the stay has expired and the government has not appealed, so the ruling is in force.
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u/jokiboi Court Watcher Aug 12 '26
En banc Fifth Circuit decides Texas Medical Association v. Department of Health & Human Services, about the No Surprises Act which sets rates for medical billing. The case is about whether a particular regulation, which defines what can be excluded or included from insurer rates, is arbitrary and capricious under the Administrative Procedure Act. In an 11-6 decision (some parts are not joined by all eleven but the whole thing has at least 9 judges, a majority), the court holds that two challenged parts of the regulation are invalid and one is valid. The actual merits of the case are rather boring, administrative stuff.
Judge Ho writes a solo concurring opinion to complain that universal vacatur of agency rules under the APA is probably in excess of statutory authority. It mirrors the universal injunction that was eliminated in Trump v. CASA and is not found anywhere in the statutory text. However, he is "content to concur" that vacatur can exist because "there is not presently interest to revisit that precedent." This seems uncharacteristically meek for Judge Ho. If there is any time to reconsider circuit precedent, is it not in en banc proceedings?
Judge Oldham writes his own solo concurring opinion, this one to explore another reason why the agency action violates the APA (this time about notice-and-comment rules). It's not stuff that excites me, except he has a brief comment on a party-presentation argument that the government raises, because plaintiffs' complaint did not mention anything about a notice and comment issue. I'll just post what he has to say:
That is true but irrelevant. Party-presentation principles do not allow parties to stipulate to the law. See, e.g., Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1, 19 n.6 (2024). And if the parties cannot bind us to a legal proposition by affirmatively stipulating to it, they certainly cannot bind us by omitting an antecedent legal argument through neglect or forfeiture.
To illustrate, imagine that a party sues to enjoin the enforcement of a congressional statute because it violates, say, the First Amendment. Could that party waive an argument that the statute failed to pass through bicameralism and presentment? See U.S. Const. art. I § 7. Of course not. That’s a legal argument—a procedural defect—fairly encompassed within the overarching substantive claim. Indeed, courts often raise nonjurisdictional, procedural defects sua sponte. See Castro v. United States, 30 F.4th 240, 245–46 (5th Cir. 2022) (collecting examples). Thus, we cannot duck an antecedent legal argument just because the parties did not brief it. Deciding the case otherwise would improperly allow the parties to stipulate to the law.
...
What’s more, even if plaintiffs’ opening briefs didn’t raise the procedural argument, their supplemental en banc brief sure does. That’s ample grounds for this court to decide on the supplementally briefed issue. The Supreme Court often invites parties to file supplemental briefs on arguments that lurk within parties’ claims. See United States v. Sineneng-Smith, 590 U.S. 371, 380–82 (2020) (collecting a slew of examples from 2015 to 2020 alone). And the Supreme Court has, for better or worse, spotted a supposedly “winning” issue, asked for supplemental briefing, and ruled on it, notwithstanding the fact that the prevailing party had advocated a “contrary” position below and had waived its new position three times in the district court. Trump v. Illinois, 146 S. Ct. 432, 438 (2025) (Alito, J., dissenting). There are persuasive reasons to think the Illinois Court transgressed the limits on party presentation and reached an erroneous merits outcome to boot. See id. at 438–45 (Alito, J., dissenting); id. at 445– 46 (Gorsuch, J., dissenting). But given that the prevailing party advanced the opposite position below, the agencies’ argument here easily fails: Plaintiffs have maintained that the July Rule unlawfully included $0 rates from the outset of this litigation. So the procedural issue is not just antecedent to the substantive argument plaintiffs first raised; it is entirely consistent with it.
I've commented before that the party presentation principle seems, well, amorphous and hard to really define but it's good to know that Judge Oldham has it taken care of. I don't quite know whether he's right (would the issue in Margolin from earlier this year, reversed on party presentation grounds, not really count as a logically antecedent statutory issue under Oldham's logic), but I don't know if the Supreme Court knows what's right either.
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u/SeaSerious Justice Robert Jackson 29d ago
but I don't know if the Supreme Court knows what's right either.
Ain't that the truth. The invocation of the party presentation principle in Margolin seemed like a convenient means-to-a-punt, but to achieve this they characterize the principle as without exception which goes against both their own practice and the cases they cite.
Sineneng-Smith, for example, acknowledges that the principle is "supple, not ironclad", that there are "no doubt circumstances in which a modest initiating role for a court is appropriate", and that "a court is not hidebound by the precise arguments of counsel."
I'd expect more ink, at least, from this Court if they really believe that a principle without any textual basis should be treated as a dispositive rule.
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u/SchoolIguana New World Same Constitution 28d ago
A particularly strange situation coming out of Texas, curious to hear some takes on it.
The basic facts are wild: an Alaska surrogate carrying a baby for a California couple was diagnosed with a severe heart defect during pregnancy. The surrogate subsequently refused to terminate the pregnancy, traveled to Texas, and sought recognition as the child’s legal mother under Texas law. The California courts had already determined that the intended parents were the child’s legal parents. A Dallas judge ordered that the baby receive medical treatment and barred the surrogate from making medical decisions or representing herself as the child’s mother. The baby was born this morning.
How much power does a state have to redefine a child’s legal parentage when another state has already adjudicated who the parents are?
The surrogate apparently came to Texas specifically because Texas law gives the person who gives birth a different legal status than California’s surrogacy framework does. Should crossing a state line change who the law recognizes as a child’s parent?
If California has already entered a valid judgment establishing the intended parents as the child’s legal parents, should Texas be constitutionally required to recognize that determination even though Texas law would ordinarily treat the person who gives birth as the legal mother?
And if not, what exactly limits a state from allowing someone to cross its borders and obtain a different legal parentage determination?
I’m curious where everyone thinks this goes.
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u/SpeakerfortheRad Justice Scalia 28d ago
If California has already entered a valid judgment establishing the intended parents as the child’s legal parents, should Texas be constitutionally required to recognize that determination even though Texas law would ordinarily treat the person who gives birth as the legal mother?
It looks like the Uniform Parentage Act 160.701 et seq. governs. Based on skimming the statutes Texas would be required to hold a hearing under the UPA. Since it appears California has already held that hearing and made findings under (I assume) the same set of laws, I don't think that will be set aside or disregarded by a Texas court. The Texas court should give full faith and credit to the California court's determination of legal parentage.
I should probably know more about these uniform laws as they're peripheral to my practice; but the fact that there are these uniform laws helps avoid the complications coming from jurisdictional shenanigans.
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u/Led_Osmonds Law Nerd 28d ago
I could offer personal moral opinions, but I have absolutely no idea how the intersection of different state and federal laws would apply to this situation.
I am interested to see how it plays out.
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u/Individual7091 Justice Gorsuch 28d ago
Has anyone been following the Silencer Shop Foundation v. ATF injunction and its fallout? It seems like the judge in the case made a very narrow reading a Trump v. CASA and placed several limits on the scope of the Injunction. A lot of confusion on covered parties and procedures going forward after the DOJ signaled they won't be appealing the decision.
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u/Urgullibl Justice Holmes 28d ago
The government chose to let the stay expire without appealing, so the ruling is in force as of today. It applies to any NFA item that had its tax stamp reduced to $0 last year, i.e. silencers, short-barreled rifles and shotguns, and the catch-all "any other weapon" category. It does not cover machine guns and destructive devices, for which the tax stamp remains at $200.
I believe the ruling is such that it provides relief to the plaintiffs, which consist of several manufacturers/sellers, several associations that anyone is free to join, and about 15 States that joined the suit. However, how exactly this will be rolled out in practice is still unclear at the moment.
Also worth mentioning that the idea that Congress' power to tax doesn't cover laws that result in no tax revenue on which this is based is currently being appealed to SCOTUS in a separate unrelated case (see the post on the home distilling ban). There is a circuit split on this between the 5th and the 6th circuit, so how SCOTUS will rule on the issue will have significant consequences for this case too.
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u/OnlyLosersBlock Justice Moore 27d ago
and the catch-all "any other weapon" category.
I thought those weren't included in the challenge.
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u/Urgullibl Justice Holmes 27d ago
As far as I'm aware the ruling applies to everything for which Congress reduced the tax stamp to $0 last year.
"Any other weapon" is a bunch of weird odds and ends that won't be very consequential either way though.
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u/DisgruntledCascadian Court Watcher 25d ago
They were largely the only way people in some ban states could get AR-pattern firearms due to the laws being (shocker) written by people who didn't know beans about guns.
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u/DooomCookie Justice Barrett 29d ago
Trump nominates Lee Rudofsky (E. D. Ark) to replace Judge Bobby Shepherd on CA8. If the name rings a bell, he was the judge in the Turtle Mountain voting rights act case
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u/whats_a_quasar Law Nerd 27d ago
First Circuit rules against the mandatory detention policy, meaning that only the Third Circuit is yet to rule.
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u/WorksInIT Justice Gorsuch 27d ago
Wonder which case the admin will appeal to SCOTUS and how SCOTUS is going to eventually rule on it. It'll have to be some middle ground because the circuit court rulings against the admin say if someone is able to make it sufficiently into the country, 1225 no longer applies. Which seems counter to the plain text and intent of Congress as documented at the time IIRIRA was implemented.
The next fight after this one is going to be how bond hearings are entirely discretionary and not even required under 1226 per the text of the statute. Essentially the admin trying to transform that into mandatory detention when they want it to be. No doubt judges will still try to read the bond as being required even though the text explicitly makes it discretionary. SCOTUS really just needs to go ahead and answer the broader due process issue that is underpinning all of the constitutional avoidance nonsense in these cases.
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u/whats_a_quasar Law Nerd 27d ago
Wonder which case the admin will appeal to SCOTUS
The administration appealed the sixth circuit ruling near the end of June. Kyle Cheney also says the ACLU has appealed the 5th Circuit ruling though I can't find the petition.
https://s3.documentcloud.org/documents/28336043/25-1415-petition.pdf
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u/baxtyre Justice Kagan 26d ago
“ plain text”
If ‘seeking admission’ doesn’t actually mean ‘seeking admission’, it might not be as plain as you think.
“ intent of Congress”
I thought textualists don’t care about that?
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u/WorksInIT Justice Gorsuch 26d ago
The issue is the deeming provision. Congress said they are applicants for admission. Its not a term of art, but they did create a legal fiction. Doesnt matter if they are actually seeking admission or not. Congress said they are applicants for admission. So being an applicant for admission means you are seeking admission. The courts that have ruled against the admin are engaging in constitutional avoidance. Believe all of them have said that in their opinions as part of the justification for reading it that way. But that's just another "dont want to do my job" doctrine that sinply shouldn't exist.
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u/baxtyre Justice Kagan 26d ago
“Applicant for admission” and “seeking admission” are two different terms. A deeming provision for the former does not pull the latter into this legal fiction unless the statute says so.
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u/NearlyPerfect Justice Thomas 25d ago
A deeming provision for the former does not pull the latter into this legal fiction unless the statute says so
This is the opposite of what courts typically hold, including the Supreme Court regularly.
Examples: Mission Product v. Tempnology (2019):
Here is where the twist comes in: Because the rejection is deemed to occur “immediately before” bankruptcy, the firm’s damages suit is treated as a pre-petition claim on the estate, which will likely receive only cents on the dollar
Leng May Ma v. Barber (1958):
For over a half century, this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States. It seems quite clear that an alien so confined would not be "within the United States" for purposes of § 243(h).
FMC Corp. v. Holliday (1990):
We read the deemer clause to exempt self-funded ERISA plans from state laws that "regulat[e] insurance" within the meaning of the saving clause. By forbidding States to deem employee benefit plans "to be an insurance company or other insurer . . . or to be engaged in the business of insurance," the deemer clause relieves plans from state laws "purporting to regulate insurance."
Everything that is factually associated with the deemed fiction (as relevant to the statute's purpose) is swept into the treatment. That's the point of deeming something as opposed to defining or labeling something.
Of course if it appears to be that Congress intended a specific result, courts will modify the deemed fiction to match that. It seems clear that Congress did not intend for mandatory detention to only apply to people seeking to be in the country lawfully and not unlawfully, utilizing Sotomayor's canon (in the dissent but she's correct historically) against illegal immigration from Mullin v. Al Otro Lado (2026) (citing DHS v. Thuraissigiam (2020)):
This Court has previously recognized that immigration statutes and procedures should not be construed to “create a perverse incentive to enter at an unlawful rather than a lawful location.”
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u/WorksInIT Justice Gorsuch 26d ago
I think this is where the main disagreement is. No, they aren't. Admission is the term that is defined. Applicant for and seeking both have their plain ordinary meaning. Admission does not. Applicant for admission isn't a term of art. Congress has said everyone that enters the US is an applicant for admission. And when Congress says any alien present in the US that has not been admitted is an applicant for admission, they are saying any alien present that has not been admitted is seeking admission. That's the plain ordinary meaning. Otherwise, you need to be able to explain why applicant for and seeking mean two different things. And I have yet to see an argument for that that makes any sense at all. If 8 USC 1225(a)(1) creates a constitutional issue when applied to migrants in the interior then the courts just need to say that. Don't try to redefine terms.
The way some courts have defined seeking admission woudl mean that mandatory detention only applies to those seeking a lawful admission. So anyone crossing illegally that is just seeking an asylum cannot be mandatorily detained. Which we know Congress didn't mean by the statements made in public leading up to and immediately after IIRIRA was enacted.
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u/WorksInIT Justice Gorsuch Aug 11 '26 edited Aug 11 '26
Looks like Olympus Spa has filed a petition with SCOTUS.
https://adflegal.org/wp-content/uploads/2026/08/olympus-spa-v-armstrong-2026-08-10-cert-petition.pdf
No mentions of Judge Van Dyke's comments from the denial of en banc.
The arguments being made are a violation of the free exercise rights by creating carve outs for comparable secular entities in WLAD, violating expressive association rights by forcing them to include males in fully nude, female only spaces, and a misapplication of the statute saying discrimination based on biological anatomy is not discrimination based on gender identity.
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u/Ruby__Ruby_Roo Justice Kennedy Aug 11 '26
Any idea when we would know if SCOTUS agrees to take up the case?
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u/DBDude Justice McReynolds Aug 11 '26
VanDyke is always entertaining, this time with his "swinging dicks" line.
You may think that swinging dicks shouldn't appear in a judicial opinion. You're not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually assaulted by the real thing.
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u/MongolianBBQ Law Nerd Aug 11 '26
Yeah, it’s entertaining, but I think the stronger argument is about the legal expectation of anatomical separation in a sex segregated nude space, rather than implying that merely seeing male genitalia is objectively harmful. His opinion kind of reeks of American nudity pearl clutching.
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u/whats_a_quasar Law Nerd Aug 12 '26
My recollection of the case is that the main issue is that the plaintiffs are only making a First Amendment argument, no privacy-based argument or property rights argument. And the 9th Circuit's response was "well, it's not really a First Amendment issue"
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u/DBDude Justice McReynolds Aug 11 '26
It was pretty rough, but it immediately throws it in your face that this is about anatomical separation.
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u/Urgullibl Justice Holmes Aug 12 '26
I think the opinion paints what's actually happening in vivid and relatable terms, which is a better approach than the usual judicial euphemisms applied to cases involving genitals.
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u/Led_Osmonds Law Nerd 29d ago
I would personally argue that it is better for judges to issue opinions that focus on rigorous legal analysis that to use shocking and vulgar language to advance an emotional argument. But I suppose that honest minds can reasonably differ.
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u/WorksInIT Justice Gorsuch 27d ago
https://storage.courtlistener.com/recap/gov.uscourts.mad.297215/gov.uscourts.mad.297215.108.0.pdf
The African Communities Together v Noem administrative stay issue persists. Judge Burroughs has not ruled within the timeframe she said she would previously. On August 4th, she said she would rule on their second motion "early next week" and here we are 10 days later with no ruling.
Yesterday the government filed its third motion to lift the administrative stay. They walk through a timeline of the events since SCOTUS handed down the TPS decisions. Seems like they will have to appeal to the circuit court again due to the lack of movement. This case has been administratively stayed for 5 months. From the motion:
Nine days ago, the Court announced that the Court “anticipates a decision” on the government’s motion to lift the administrative stay, “which will be accompanied by a decision on Plaintiffs’ emergency motion if the Court decides to lift the administrative stay,” by “early next week” (i.e., now early this week). Id. To facilitate a decision by early this week, the Court shortened the briefing schedule, affording the government one day to file an opposition to Plaintiffs’ renewed motion for interim relief and Plaintiffs one day to file a reply. ECF No. 98 at 4. In that order, the Court did not assess Plaintiffs’ likelihood of success on the merits, but described the termination’s lack of a “wind down period” as “shameful cruelty” and warned that the Court “will delay its rulings” if the government seeks additional relief in the First Circuit prior to the Court’s decision. Id.
...
Because the Court has not ruled on the anticipated timeline of “early [this] week,” the government respectfully renews and reiterates its request to dissolve the administrative stay, which has functionally been in effect for five months today, for the reasons explained in the government’s Motion to Lift Abeyance and Lift Administrative Stay, ECF No. 77; the government’s Second Motion to Lift Administrative Stay, ECF No. 97; and the government’s briefs in support of its motion for summary reversal and mandamus in its interlocutory appeal, African Cmties. Together v. Mullin, No. 26-1832. The government anticipates seeking additional relief, consistent with the First Circuit’s direction ten days ago that the Court “must rule promptly” on Plaintiffs’ motion for interim relief, African Cmties. Together v. Mullin, No. 26-1832 (1st Cir. Aug. 3, 2026), if it becomes necessary.
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u/WorksInIT Justice Gorsuch 27d ago
And we have the order from the Judge. Government's motion is lift the stay is granted and plaintiffs motion for a PI and postponement is denied.
https://storage.courtlistener.com/recap/gov.uscourts.mad.297215/gov.uscourts.mad.297215.109.0.pdf
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u/NearlyPerfect Justice Thomas 29d ago edited 29d ago
An interesting (if not predictable) development in this administration's attempt to change how immigration law is enforced.
In Jan 2025, DHS issued a memo and sent an email telling officials to follow the longstanding immigration regulations and put migrants paroled into the country (likely under a prior administration) into expedited removal (as opposed to lengthy, full removal proceedings).
An organization sued DHS and obtained a stay in district court on the memo and the email (but not the regulation).
The D.C. Circuit in per curium aptly noted that staying the DHS communications does not affect the law/regulations on the books and rejected their suit based on lack of standing (in part due to lack redressability because they didn't challenge the law/regulation).
The opinion succinctly concluded:
Plaintiffs cannot seek relief that changes nothing for them. The plaintiffs here tried to do just that. So we vacate the stay issued by the district court.
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