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As of 2:15 AM ET, by all accounts, it looks like Donald J. Trump will be the 45th President of the United States. This selection will further shrink the Supreme Court’s docket this term, and the next.

First, U.S. v. Texas–which is currently floating in Brownsville–will be removed from the docket, as a President Trump would rescind DAPA.

Second, Zubik v. Burwell–which is also floating in the lower courts–may also be removed from the docket, as a Trump Administration would simply exempt the Little Sisters of the Poor and other charities from the mandate.

Third, House of Representatives v. Burwell, which is pending before the D.C. Circuit, may also come off the docket. A Trump Administration will simply decline to make these illegal payments. On a related note, look for the Obama administration to quickly settle the risk corridor suits.

Fourth, further down the road, you can expect the Trump Administration to rescind the Clean Power Plan rulemaking, so that challenge also comes off the docket.

What executive action giveth, executive action taketh away.

Fifth, Trinity Lutheran, which was never been scheduled for argument, will likely come off the docket. Josh Hawley–a former law professor who has worked with the Becket Fund–has won his race for Missouri Attorney General. He will probably make that case go away.

There is a lot to digest. I’ll do my best to keep my commentary within my sphere of competency.

On this day, of all days, I am reminded of Learned Hand’s 1944 speech, titled “The Spirit of Liberty.” At bottom, our freedom is not something any document or court can ever protect, but it it “lies in the hearts of men and women.”

We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land. What was the object that nerved us, or those who went before us, to this choice? We sought liberty – freedom from oppression, freedom from want, freedom to be ourselves. This then we sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few – as we have learned to our sorrow.

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interest alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten – that there may be a kingdom where the least shall be heard and considered side-by-side with the greatest. And now in that spirit, that spirit of an American which has never been, and which may never be – nay, which never will be except as the conscience and courage of Americans create it – yet in the spirit of America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America so prosperous, and safe, and contented, we shall have failed to grasp its meaning, and shall have been truant to its promise, except as we strive to make it a signal, a beacon, a standard to which the best hopes of mankind will ever turn; In confidence that you share that belief, I now ask you to raise you hand and repeat with me this pledge:

I pledge allegiance to the flag and to the United States of America and to the republic for which it stands–One nation, Indivisible, with liberty and justice for all.

Whatever happens today, is what we deserve.

On November 4, my co-counsel and I filed a petition for rehearing en banc before the 5th Circuit in Defense Distributed v. Department of State. You can download the brief here. Here is the statement of the case:

Never before has a federal appellate court declined to enjoin a content-based prior restraint on speech while refusing to consider the merits of a First Amendment challenge. Plaintiffs-Appellants, Defense Distributed and Second Amendment Foundation, Inc., respectfully request en banc rehearing. The panel majority’s novel decision contradicts a long line of established Supreme Court and circuit precedents governing constitutional claims and injunctive relief—including decisions of this and all other regional federal circuit courts of appeal. To read the opinion is to establish the necessity of en banc review, which is essential to maintain decisional uniformity and to consider questions of exceptional importance.

1. Courts adjudicating motions to enjoin unconstitutional actions must weigh the familiar preliminary injunction standards set out in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008): the plaintiff’s likelihood of success on the merits, irreparable harm, balance of the equities, and the public interest. Courts are required to consider the first prong, Sole v. Wyner, 551 U.S. 74, 84 (2007); Ashcroft v. ACLU, 542 U.S. 656, 666 (2004), which “is arguably the most important.” Tesfamichael v. Gonzales, 411 F.3d 169, 176 (5th Cir. 2005); cf. Laclede Gas Co. v. St. Charles County, 713 F.3d 413, 419-20 (8th Cir. 2013).

If a court refuses to consider a plaintiff’s likelihood of success on the merits, it perforce cannot fully assess irreparable harm, nor can it balance the equities. Nor can a court that ignores the merits of a constitutional case comprehend (let alone determine) the public interest, which by definition cannot contradict the Constitution itself.

Accordingly, ten circuits stress the primacy of Winter’s first prong in the First Amendment context. See Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 10-11 (1st Cir. 2012); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013); Stilp v. Contino, 613 F.3d 405, 409 (3d Cir. 2010); WV Ass’n of Club Owners & Fraternal Servs. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009); Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir. 2014); ACLU of Illinois v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012); Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, 690 F.3d 996, 1004 (8th Cir. 2012); Verlo v. Martinez, 820 F.3d 1113, 1126 (10th Cir. 2016); Scott v. Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010); Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). Another circuit views the merits prong as potentially decisive in the First Amendment context. Dish Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir. 2011).

The majority’s decision, affirming the denial of a preliminary injunction against a censorial prior restraint without regard to the merits, conflicts with Winter, Sole, Ashcroft, and Tesfamichel, which mandate a merits analysis; and with the above-cited decisions of all other regional circuits holding the merits prong indispensable or potentially dispositive in First Amendment cases.

2. The majority’s remarkable holding that the Government may serve the public interest by violating the Constitution conflicts with Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014); Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279 (5th Cir. 2012); Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996); Liberty Coins, supra, 748 F.3d 682; Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012); and Pursuing America’s Greatness, supra, 831 F.3d 500, among other opinions.

And our conclusion:

The majority’s unbalanced analysis has the effect of placing the Court in the Government’s censorial position. Suppose that Saudi Arabia refused the United States essential military cooperation, so long as Saudi citizens could access Americans’ online files related to the 3D printing of the devices secured in Reliable Consultants v. Earle, 517 F.3d 738 (5th Cir. 2008). Would “national security” justify the State Department in ordering Americans to take down their web sites?

Americans reading the panel opinion may wonder whether the content of their speech determines whether this Court would hear the merits of their First Amendment claims. The majority’s merits-free, First Amendment-free approach must apply to everyone, or to no one.

If the Court is unprepared to do away with preliminary injunctions to secure the right of free speech, it should conform its decisional law to the Supreme Court’s requirements and adopt the standards applied in the other circuits. Rehearing en banc should be granted.

All of the pleadings in this case can be downloaded here.

On Wednesday, November 16–the day before the Federalist Society National Lawyer’s Convention begins–the Heritage Foundation is hosting a book forum for Unraveled. John Malcolm will be hosting the event. If you can make it, please register in advance.

During my trip to Mobile two weeks ago, I spoke with reporter Brendan Kirby of Lifezette about Unraveled. He published the interview in Q&A form. Here are the highlights (or lowlights depending on your perspective):

In his first book on the Affordable Care Act, “Unprecedented: The Constitutional Challenge to Obamacare,” Josh Blackman offered an insider’s account of the legal battle that resulted in a controversial Supreme Court decision upholding the health care overhaul.

The Houston College of Law professor in September published a follow-up, “Unraveled: Obamacare, Religious Liberty, and Executive Power,” which argues that the health system birthed by the law is unsustainable.

Blackman recently sat down with LifeZette and discussed why the law is failing so quickly, the legal battles that remain, and why he thinks the result ultimately will be more government intervention, not less. There is one major legal challenge still pending: Little Sisters of the Poor Home for the Aged v. Burwell. A Supreme Court robbed of its deciding vote by the death of Antonin Scalia could not settle the issue — whether the government can force the Catholic nuns to cover contraception as part of their health insurance plan — putting the case in an open-ended limbo.

…

LifeZette: What is the most significant thing about Obamacare that most people don’t know?
Blackman: How quickly it’s falling apart. The people who designed it didn’t expect this to be a permanent solution. But what has been frankly stunning is that in less than three years, all the premises, all the assumptions, all the theories have collapsed. And it’s been, frankly, unbelievable how quickly the law has unraveled.

LifeZette: You say that Obamacare is like a cockroach or Keith Richards. What do you mean by that?
Blackman: It can’t be defunded [as Sen. Ted Cruz (R-Texas) attempted with a partial government shutdown in 2013]. The only way to get rid of it is to repeal it in its entirety. So all these efforts to defund this, defund that — it won’t work. You actually have to repeal the bill.

LifeZette: Had President Obama not told his famous “Lie of the Year” as declared by PolitiFact in 2013, you’re convinced the law never would have passed?
Blackman: No. No. If people thought that they were going to lose their insurance, this bill could not have passed in its current form. It would be simply impossible.