The Pithlord immediately wondered why the controversial constitutional rulings were necessary if a more straightforward statutory basis for the decision was available. But Publius has been doing the Lord's work demonstrating that she shouold never have got to this point on a summary judgment application.
The argument at Publius's and at Lawyers, Guns and Money quickly got to the point where the Pithlord felt he couldn't add value. To really advance things, I would need to know the US Federal Court rules, and how they have been applied, in some detail.
However, if I can add a comparative angle, the Canadian courts have held that it is almost never appropriate to strike down legislation or give a wide-ranging constitutional remedy on the basis of our equivalent procedures. As a lawyer, it bugs me to think that decisions of this magnitude could be made without giving the government a chance to provide its evidence or (really) make its argument.
My main point, though, is just to suck up. Publius, despite being a liberal supportive of the result, came up with a way better argument than any of the conservative lawyery-pundit-types, of whom there are many. He deserves wide exposure.
Like publius, I can't get too outraged about this -- the judge's actions outside her appropriate constitutional role pale in comparison to those of the Bush administration, and will likely be corrected on appeal. I suspect publius is doing a good thing for the cause -- since reversal of at least part of the decision is almost inevitable, publius's analysis might help some journalist somewhere realize that it is still a vicotry for the good guys if the Government's motion to dismiss is rejected at the appellate level. But however the politics play out, it is important not to cheat ... and good on Publius for thinking so.
Update: Charley has taken me to task in the comments. I'm obviously outclassed in discussing US Federal Court procedure, but I will try to post something explaining why I'm biased in favour of Publius' position (even though the bigger picture, surely, is the Bush administration's repudiation of the rule of law).