SNAP benefits run out tonight — Halloween. States sued the USDA to force it to tap the Long-Term Emergency Fund, which has $5.5 billion set aside for exactly this kind of situation. The government's argument: it was designed for hurricanes, not shutdowns. Their own brief, page 6, section D: they admit the language was added for this purpose, and the only reason it's never been used for a shutdown is that in January 2019 the shutdown ended before they had to. The judge: "If you don't have money, you tighten your belt. You are not gonna make everyone drop dead because of a political game somewhere."
A group of states, led by Massachusetts, sued the USDA for refusing to use the Long-Term Emergency Fund to continue SNAP (Supplemental Nutrition Assistance Program) benefits during the government shutdown. SNAP benefits were set to run out on October 31st — Halloween — leaving families who rely on the program for grocery money in an immediate crisis. The Long-Term Emergency Fund holds approximately $5.5 billion, which Bryan noted would cover more than half of November's needs. The government's argument: the fund was designed for natural disasters like hurricanes, not government shutdowns; it's never been used for a shutdown, so this purpose was never intended. The problem: Bryan directed listeners to page 6, section D of the government's own brief, where the administration admits (1) the statutory language was added for this purpose and (2) the only reason it's never been used for a shutdown is that in January 2019, when USDA was about to draw on it, the shutdown ended at the last moment. The judge heard argument, said she was leaning toward ordering the government to use the fund, acknowledged there would be a delay in implementation, and expected to issue a ruling that day (though it hadn't come out by the time Bryan filmed). The judge's quote: "If you don't have money, you tighten your belt. You are not gonna make everyone drop dead because of a political game somewhere."
Spending ClauseSNAPLong-Term Emergency Fund statutory interpretationAPA arbitrary and capriciousstates' standing to compel USDA to use emergency fund
Constitutional question: The Spending Clause gives Congress authority to appropriate money for welfare programs like SNAP; it also constrains the executive's ability to withhold congressionally appropriated funds. An executive branch refusal to access emergency funds that Congress created for this purpose — while families go without food — raises non-impoundment concerns (Train v. City of New York) and argues that the executive is effectively rewriting a spending statute by interpreting "emergency" to exclude the scenario Congress most recently and nearly was about to use it for. The judge's "political game" framing captures the constitutional concern: the executive is not allowed to use appropriations control as leverage by allowing harm to accrue to beneficiaries.
Kilmar Abrego Garcia has a pre-trial conference today at 1 PM and a two-day hearing next week on the vindictive prosecution claim. The government wants to avoid sending Deputy AG Todd Blanche — or any other high-level DC official — and is offering to send the acting US Attorney for Middle District of Tennessee instead. Bryan: with stakes this high, bet the judge makes them bring someone from DC.
US v. Garcia (25-cr-00115) continued with a pre-trial conference scheduled for October 31st at 1 PM. The two-day evidentiary hearing on the vindictive prosecution claim was scheduled for the following week. At stake: the allegation that DOJ brought criminal charges against Kilmar Abrego Garcia specifically in retaliation for his assertion of constitutional rights in the civil case — a claim the criminal judge had already allowed to proceed. The government filed a motion to quash subpoenas calling for Deputy AG Todd Blanche and other high-level DC officials to appear at the Tuesday hearing, offering instead to send acting US Attorney for the Middle District of Tennessee, Robert McGuire, as a substitute. Bryan had not yet seen an order on the quash motion and expected one to come out in the October 31st conference. Bryan's read: given what's at stake — a vindictive prosecution finding that could result in dismissal and potential disbarment for the prosecutors — the judge would likely require DC representation rather than accepting the substitute.
Vindictive prosecutionmotion to quash subpoenassenior executive official testimonytwo-day evidentiary hearingparallel civil
Constitutional question: The vindictive prosecution claim is a Fifth Amendment due process protection: if the government brought criminal charges as retaliation for civil rights assertions, the prosecution is constitutionally impermissible regardless of whether the charges have technical merit. The motion to quash seeks to insulate the decision-makers — the people who actually decided to charge — from being questioned about their motivations. The constitutional argument cuts both ways: the government has a legitimate interest in protecting high-level executive deliberations, but that interest cannot be used to shield evidence of a constitutional violation in the charging decision itself.
Georgetown Law Professor Lederman filed an amicus brief in the SCOTUS review of Trump v. Illinois arguing that "regular forces" in 10 U.S.C. § 12406 means the regular army — the historical "regulars" — not ICE or CBP. Justice Barrett issued an order: both parties must brief this question. Briefs due November 10. Bryan: maybe the reason they went straight to the National Guard instead of the army is that sending the army wasn't actually available to them.
In the SCOTUS review of Trump v. Illinois (25A443), a Georgetown law professor (Marty Lederman) filed an amicus brief arguing that the term "regular forces" in 10 U.S.C. § 12406 — the statute the administration used to justify federalizing state National Guard units — means the regular United States Army, not ICE, CBP, or other civilian federal law enforcement. The statute's text: the president can federalize the Guard when "unable with regular forces to execute the laws of the United States." Historical context: Bryan explained that in the founding era and through the 19th century, "regulars" specifically referred to the standing professional army, as distinct from state militias. The Dick Act of 1903 created a formal relationship between the federal government and state militias, establishing the National Guard as the constitutionally-defined organized militia — distinct from the regular army. Under the professor's reading, the president would have to first demonstrate that the regular army was unable to handle the situation before calling on the National Guard. Justice Barrett issued a short order directing both parties to file briefs addressing whether "regular forces" refers to the US military's regular forces, and if so, how that interpretation affects the operation of § 12406. Briefs due November 10. Bryan's take: the government went straight to the National Guard rather than the regular Army, which is suspicious — unless deploying the regular Army domestically wasn't legally available to them under Posse Comitatus or other restrictions, which might explain why they chose the Guard path.
10 U.S.C. § 12406 "regular forces" interpretationDick Act of 1903historical meaning of "regulars"amicus brief from Georgetown Professor LedermanJustice Barrett order for supplemental briefingNovember 10 brief deadline
Constitutional question: The "regular forces = Army" interpretation has significant constitutional implications for the militia/Guard architecture. Article I gives Congress authority to "provide for calling forth the Militia" and "provide for organizing, arming, and disciplining" it; Article II makes the president commander-in-chief when the militia is "called into actual service." The Dick Act (1903) was Congress's implementation of this architecture, formally organizing the state militias into the National Guard. If § 12406 requires the president to first try the Army, it enforces a congressional sequencing choice that protects state sovereignty from preemptive federalization. Justice Barrett's order to brief this suggests at least one justice views it as potentially determinative — not just a statutory curiosity.
CBP submitted its body camera audit to the court: 57 use-of-force reports from Chicago, 49 of which should have camera footage. They store everything on a cloud server called evidence.com. Bryan: "Does anybody else find that funny?" They're creating accounts for the judge and plaintiffs. The daily Bovino 6 PM reporting requirement is stayed in the Seventh Circuit pending appeal. And Kristi Noem said she would not curtail activities to prevent kids from being tear-gassed on Halloween.
CHC v. Noem had two developments on Halloween. First: CBP filed its body camera compliance report with the court. Out of 57 use-of-force reports from CBP agents in Chicago, 49 should have associated body-worn camera video. CBP stores all body camera footage on a cloud-based server called evidence.com — Bryan found this name disproportionately amusing. Because of the volume and format of the footage, CBP proposed creating accounts on evidence.com for both the judge and the plaintiffs, allowing them to view the footage directly rather than transferring it through conventional means. Second: the Seventh Circuit stayed the daily reporting requirement — the order that Bovino appear in Judge Ellis's chambers every weekday at 6 PM — pending appeal. Bryan flagged the timing as "a little concerning" given that Kristi Noem had publicly stated she would not curtail CBP's activities to ensure children weren't tear-gassed on Halloween. Bryan: "But it's time they learn. You don't get free candy for nothing."
Body camera audit and evidence productionevidence.com as custody chaindaily reporting requirement stay pending 7th Circuit appeal
Constitutional question: The body camera audit operationalizes the constitutional accountability function the TRO was designed to create: documented evidence of what government actors did, linked to specific incidents and identifiable officers. The 49 incidents with camera-coverage obligations create a baseline against which future compliance failures can be measured. The Seventh Circuit stay of the daily reporting requirement is a procedural check on Judge Ellis's remedial authority — circuits can stay district court injunctions pending appeal even when constitutional violations are documented. The Noem statement (not curtailing activities to protect children from tear gas on Halloween) is constitutionally significant: it signals that the agency head views TRO compliance as optional when appeal is pending, not as a floor below which conduct cannot go.
