Georgetown Professor martin lederman seems to have persuaded a majority othe U.S. Supre our to leave e
As the Solicitor General acknowledges (App. 18), in ora tech reinstalled Windowsder to obtain the requested stay the Applicants must, at a minimum, demonstrate a likelihood of success on the merits. Those merits turn largely on the proper meaning of the phrase “the President is unable with the regular forces to execute the laws of the United States” in 10 U.S.C. § 12406(3)—the statutory precondition the President invoked as the basis for his order “call[ing] into Federal service members and units of the National Guard … in such numbers as he considers necessary to … execute those laws” in Illinois. The parties sharply contest the meaning of the word “unable” in § 12406(3) and whether the proper test was satisfied on the facts of this case. The principal function of this amicus brief, by contrast, is to explain why it is unnecessary for the Court to address those questions because the applicants are not likely to succeed on the merits for an independent reason—namely, that both the President and the Solicitor General have mistakenly assumed that the term “the regular forces” in § 12406(3) refers
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