I'm now even more annoyed, as a lawyer who actually does federal litigation on a regular basis and where the Republican Administration routinely and sincerely believes that regulations that I believe are lawful and necessary violate the First and Fifth Amendments.
So because the Second Circuit has *no* standard for review the Administration is just going to abdicate the defense of a statute? Will this be valid for all cases of first impression? The question of establishment of a standard of review is one of the critical elements of the case.
Furthermore, even if it were established that strict scrutiny applied, it would be the obligation of the Administration to defend the law under that standard. It may not like it. But they have an obligation to do it.