On the Merits?

So, I was heating up lunch, and the CNN channel on the wall o'tvs (as usual) is the one that had sound on it. A guy called Ed Henry (at least, that was the name on the screen while he was talking) was telling us that a federal judge in Detroit had ruled the federal government's wireless wiretapping program unconstitutional.

He had a few things to say, such as that there was "no doubt this will go to the Supreme Court", and that it's now "the law of the land, but surely administration lawyers will be asking for a stay pending appeal."

He also said that "what was odd was that the administration's lawyers didn't defend it on its merits", so that the program was "described by the ACLU and the plaintiffs". They only asserted that it "was necessary".

Hmmm... why do you suppose they didn't defend the program "on its merits"?

Hmmmmmmmmmm