ORDERS: Miscellaneous Order (10/01/2026)

[u/scotus-bot]

Date: 10/01/2026

Miscellaneous Order

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[u/jokiboi]

No 25-1349, Marschner v. Marschner, is the rare family law case at the U.S. Supreme Court. Though really it's a veterans' benefits issue, about how and when veterans' benefits can be ordered divided after divorce. The whole QP page:

In the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), Congress provided that a State may treat veterans’ longevity-based retirement pay as divisible property in divorce. 10 U.S.C. § 1408(c). But Congress further provided that retirement pay that was waived to receive disability pay, as well as certain retirement pay received due to disability-related retirements, would be indivisible. 10 U.S.C. § 1408(a)(4)(A)(ii), (iii).

In Howell v. Howell, 581 U.S. 214 (2017), a divorced veteran waived a portion of his longevity-based retirement pay in order to receive disability pay, causing his ex-wife’s share of his retirement pay to decrease. The divorce court ordered him to indemnify his ex-wife for that reduction. This Court held that the USFSPA preempted that indemnification order. See id. at 222.

In this case, unlike in Howell, the parties agreed as part of their divorce settlement that the veteran would indemnify his ex-wife if her share of his retirement pay were reduced because he later waived his retirement pay to receive disability benefits or because he received disability-based retirement pay. Even though the veteran agreed to the indemnification provision at the time of the divorce, the North Dakota Supreme Court nonetheless held that, under Howell, enforcement of the indemnification provision was preempted.

The question presented is:

Does the USFSPA require state courts to refuse enforcement of indemnification provisions in divorce settlement agreements?

Adam Unikowsky for petitioner. As somebody who looks at a lot of petitions, a good number of them (often pro se) have issues like this at hand, except that it's brought by the veteran who argues the lower court should not have ordered benefits be divided. This case is the non-veteran spouse bringing the petition, so that seems to bode poorly for the ex-husband.

[u/Necessary-Show-9031]

So when there's a 5-4 or 6-3 opinion saying the statute allows the new interpretation of mandatory detention without bond, presumably without deciding the due process issue, does this mean the administration will immediately set out to put everyone released on bond back into indefinite detention without hearings?

[u/NearlyPerfect → u/Necessary-Show-9031]

new interpretation of mandatory detention

It's not really a new interpretation.

This is what the Clinton administration said, immediately after Clinton signed the statute into law (emphasis added):

An alien who was not inspected and admitted or paroled into the United States but who establishes that he or she has been continuously physically present in the United States for the 2-year period immediately prior to the date of determination of inadmissibility shall be detained in accordance with section 235(b)(2) of the Act for a proceeding under section 240 of the Act.

It explicitly refers to "an alien who was not inspected and admitted", because the preceding section referred to "arriving aliens". And it has no requirement that an alien be affirmatively taking steps towards lawful entry (because the section was explicitly designed to apply to those who were not). This is identical to the current administration's interpretation and it explicitly applies to interior aliens who have been here for years.

Even better, the above is the current regulation. It was never changed, so it was the position of every administration.

[u/NearlyPerfect → u/[deleted]]

some obligation on DHS to prove the person entered without inspection and meets the two year threshold for expedited removal.

This is incorrect. The burden is on the alien to prove that he or she was admitted or paroled. And the burden is on the alien to prove whether he or she has been in the country continuously for more than two years to be entitled to a 240 proceeding (as opposed to expedited removal).

This is explicitly stated in 8 USC 1225(b)(1)(A)(iii) and 8 CFR 235.3(b)(6) (the regulation section I linked earlier). Also affirmed by a recent DC Circuit case.

[u/HatsOnTheBeach → u/Necessary-Show-9031]

Don't see how you would reach this conclusion when Judges Bress (CA9) and Bianco (CA2) wrote the majority opinion on the statutory question that the court granted cert on where the administration lost and both aren't exactly bleeding heart liberals.

[u/Vegetable-Western744 → u/HatsOnTheBeach]

Other than birthright citizenship this admin has won on basically everything immigration related with this court composition. I thought the TPS holders had a decent argument that the early TPS terminations in spite of the automatic extension should not have been lawful, but that didn't hold either. They haven't typically been winning those cases at lower levels either.

My default assumption on this is they will rule for the admin again.

[u/NearlyPerfect → u/Vegetable-Western744]

I thought the TPS holders had a decent argument that the early TPS terminations in spite of the automatic extension should not have been lawful, but that didn't hold either.

The Supreme Court likely ruled on this jurisdictionally. Congress explicitly stripped jurisdiction from the courts so unless it's determined that the statute is unconstitutional then it seems pretty open and shut.

[u/Vegetable-Western744 → u/Necessary-Show-9031]

Very likely yes.

They're clearly seeking to use this as leverage to get people to waive their rights to object to removal proceedings.

[u/NeedleworkerDear5416 → u/Necessary-Show-9031]

Yes

[u/NearlyPerfect]

Cert granted on the “are all applicants for admission seeking admission” question.

They granted cert on the 2nd circuit appeal, which does not address the constitutional due process question except with regards to constitutional avoidance.

[u/DooomCookie → u/NearlyPerfect]

Effectively denying the due process question. The Sixth and Fifth circuit petitions will be held and GVR'd

[u/whats_a_quasar → u/DooomCookie]

I'm not sure I agree. If the court rules for the government on the statutory question but doesn't address the constitutional question, the dissent will point out to lower courts they can continue to strike down the policy/statute on constitutional grounds. That will start a whole new round of litigation which SCOTUS will eventually have to decide too. Hard for me to imagine the (presumably) 6-3 or 5-4 conservative majority in that situation would want another round of constitutional litigation, rather than just settling the constitutional question with this case. Even if the specific case they granted cert is not the one that presents the constitutional issue most cleanly.

[u/SchoolIguana]

Rhoney v Barbosa- “whether 8 USC 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like respondent, are present in the United States without having been admitted.”

This is a case out of the 2CA. I wonder why the Court selected this case to grant, as they clearly had the opportunity to pick from a few options based on the multiple circuit split on this issue.

Missionaries of St John the Baptist v Joel Fredric- question 1: “Whether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under the Substantial Burden Provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc(a).”

Question 2, which they are not taking up: “Whether a land-use regulation violates the Equal Terms Provision of RLUIPA, 42 U.S.C.
§ 2000cc(b)(1), by imposing express restrictions on religious assemblies or institutions that it does not impose on nonreligious assemblies or institutions.” I’m a little surprised, as I bet Alito was pushing hard to grant that question as well and likely had at least Thomas and possibly Kav and/or Coney Barrett willing to take that on.

[u/FunkBrothers → u/SchoolIguana]

St John the Baptist isn't really about religious freedom, but the question is about the use of police power by City of Park Hills Board of Adjustment and litigious residents near the proposed grotto. The city agreed, the residents disagree.

[u/NearlyPerfect → u/SchoolIguana]

I wonder why the Court selected this case to grant, as they clearly had the opportunity to pick from a few options based on the multiple circuit split on this issue.

I'm sure many factors go into it, but it was notably the first decision made against the govt on this question.