Writing at Volokh: “On this basis I am fairly confident that a challenge to ‘deem and pass’ would face rough sledding before the D.C. Circuit, but the Supreme Court could be another matter.”
In other words, why is everyone so confident the Supreme Court would follow existing precedent if this issue came before it, especially if there is a non-frivolous argument not to? This is the Court that just decided CU, almost overturned section 5 of the Voting Rights Act, and has an otherwise ambitious agenda of remaking constitutional law.