A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

My most recent column considered the challenges involved in determining the legal rules created by the people who ratified and amended the Constitution, given that the answers lie so far in the past. This column will consider the challenges of applying those rules to resolve present-day disputes.  

Lawyers for Shira Perlmutter, who served as the head of the U.S. Copyright Office until she was fired earlier this year, urged the Supreme Court on Monday afternoon to leave in place a ruling by a federal appeals court that temporarily reinstated her to her position. Brian Netter of the nonprofit Democracy Forward told the justices that, “in response to lawless executive action,” the Trump administration’s request to put that ruling on hold was seeking “extraordinary relief that would upend the status quo and defy Congress’s well-expressed intent.” 

On Monday afternoon, the Trump administration and lawyers for the state of Illinois and the city of Chicago filed additional briefs in response to a Supreme Court order for them to discuss whether, for purposes of the federal law on which President Donald Trump relied to call up the National Guard – which allows him to do so when (among other things) he cannot “with the regular forces … execute the laws of the United States” – “the term ‘regular forces’ refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation” of the law. 

The Supreme Court will hear oral argument on Wednesday, Nov. 12, in two back-to-back cases posing basic questions about the breadth of the compassionate-release statute, 18 U.S.C. § 3582(c)(1)(A)(i), that governs a type of sentence reduction for federal prisoners. The compassionate-release statute dates back to the enactment of the Sentencing Reform Act of 1984 and allows a court to grant a sentence reduction when a defendant presents “extraordinary and compelling reasons” for doing so and satisfies criteria specified by the U.S. Sentencing Commission.

Update (Nov. 13 at 1:06 p.m.): With the government shutdown over, Sauer notified the Supreme Court on Thursday morning that the Trump administration was withdrawing its request to pause McConnell’s ruling. Sauer noted that the bill ending the shutdown “fully funds SNAP through the end of the fiscal year” – rendering the request to stay the district court’s order moot (that is, no longer a live controversy).

Update (Nov. 11 at 6:31 p.m.): On Tuesday night, the Supreme Court extended the administrative stay, keeping McConnell’s ruling on hold until 11:59 p.m. EST on Nov. 13. With the House of Representatives slated to vote on Wednesday on a deal to end the shutdown, the brief unsigned order presumably gives the government time to reopen, and for SNAP benefits to resume. Jackson indicated that she would not have extended the administrative stay, and that she would have turned down the government’s request.