Ninth Circuit Panel (by 2-1 Vote): President Trump Likely Lawfully Ordered National Guard to Portland

From the majority opinion in Oregon v. Trump, by Judges Bridget Bade and Ryan Nelson:

After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when "the President is unable with the regular forces to execute the laws of the United States." The evidence the President relied on reflects a "colorable assessment of the facts and law within a 'range of honest judgment.'"

As a result, the panel stays the district court's temporary restraining order that blocked the deployment. Judge Nelson has a separate concurrence, further defending this result. Judge Susan Graber has a dissent.

Comments

[AmosArch]

Cue another 1000 post flood by Mr. Somin to try to make it look like the judiciary is 99.9999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999% lockstep against Trump.

[Jaypd]

Trump judges need to be removed and tried for treason the moment this shit show ends

[MaddogEngineer]

Oh look! Just like the online MAGA morons who go around yelling treason, here's a Resistance™ idiot who also doesn't know that judges ruling against his political preferences doesn't satisfy the definition of treason found in the Constitution.

[Jaypd]

Oh look! A bootlicking Nazi so stupid he can barely put sentences together! What shit hole did he crawl out of?

[Stupid Government Tricks]

Define "treason".

You won't.

You're an idiot.

[MaddogEngineer]

You think I'm a Nazi? Because I challenged you about the definition of treason? Perhaps you didn't notice I criticized MAGA morons doing the same thing as you--I've never voted for Trump. Do you have a reading comprehension problem? I was almost going to call you retarded in my initial post. Maybe I should have.

[Commenter_XY]

Treason is defined in the Constitution, Article III, Section 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

[David Nieporent]

It looks like the 9th is already looking to take it up en banc.

[thesafesurfer]

In reality, you have no idea whatsoever what the 9th will do.

[ah....Clem]

And they didn't even have to wait until the plaintiffs filed an appeal. Sua sponte en banc review with briefs due in two days.

This one should get reversed fairly quickly.

[MaddogEngineer]

It's nice of them to set the precedence of speed. Because this one will likely be reversed by SCOTUS also fairly quickly. Looking forward to complaints about that, after this speedy en banc.

[Kazinski]

Good chance it will be reversed at the en banc level, but they are just teeing it up for SCOTUS.

[John F. Carr]

On the jurisdictional question, an order by any name interfering with the President's power as commander in chief should be immediately reviewable. Whether the military is shooting innocent frogs or putting down a rebellion is a separate question.

[MollyGodiva]

This case has nothing to do with the President's power as commander in chief.

[Riva]

It sure as hell does. "The President shall be Commander in Chief,,, of the Militia of the several States, when called into the actual Service of the United States." U.S. CONST. art. II, § 2, cl. 1. When the President calls the National Guard into service, he's doing so as the Commander in Chief.

Incidentally, the underlying 9th circuit precedent allowing deferential judicial review of the President's order federalizing members of the National Guard under § 1240 is being challenged before the S.Ct. The district court judge's unhinged review was, however, not deferential even under the 9th circuit's questionable precedent.

[ReaderY]

The text is very clear. The President becomes the commander in chief of the militia only WHEN CALLED INTO SERVICE. Article I of the Constitution assigns the entire power “to provide for the calling forth of the militia…,” that is, to decide whether and when to call the militia into service, solely to Congress. (It limits this power to certain circumstances.)

Nothing at all to do with the Commander in Chief power.

[ReaderY]

When the President calls the militia into service, he does so solely because and to the extent Congress directs him to. And the courts have power to review his compliance with Congress’ directions.

[Riva]

You fail to understand that the President acts as Commander in Chief when calling the National Guard into service under the statute. Your interpretation of the role of the President under the statue is as narrow and restricting, and erroneous, as the district court's view of the President's order.

And the federal courts are ill suited as an institution to second guess the President's decision. Like determinations under the Alien Enemies Act, this decision depends upon “matters of political judgment for which judges have neither technical competence nor official responsibility.” Ludecke v. Watkins, 335 U.S. 160, 170 (1948).

[Kazinski]

See Jackson's first prong in Youngstown:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances and in these only, may he be said . . . to personify the federal sovereignty. If his act is held unconstitutional under thise circumstancies it usually means that the Federal Government as an undivided whole lacks power."

Its the President and Congress's power in tandem that we are discussing.

[John F. Carr]

On the merits, given the factual findings by the District Court I am leaning towards siding with the dissent. At the end of September there was insufficient disruption to ICE operations. Months earlier, military intervention may have been justified under the Newsom standard. The law is written in the present tense.

[Bruce Hayden]

Yeh - except how was the District Court doing legitimate fact finding at this point in the litigation?

[MollyGodiva]

Not hard. All the relevant facts were not in dispute.

[dwb68]

More interesting: Section I, jurisdiction on the appealability of TROs.

11 1/2 pages of examples of how the protests got violent, plus a quote from the Portland police that they weren't helping.

Is this really the case they want to appeal en banc and then to the Supreme Court.

Because: they gonna lose.

[dwb68]

The concurrence is the opinion Alito will copy when it gets to the Supreme Court. smh. The plaintiffs lack standing.

[ReaderY]

A state doesn’t have standing to contest its own mitary being taken from it? That’s like saying homeowners don’t have standing to contest their house being burglarized.

[MaddogEngineer]

What's the harm to the state? Were they going to do something else with it? If not, then they may not have standing. A state having a political disagreement with the president doesn't create standing. The ultimate begging the question.

[JRipplefireEsquire]

Thankfully we have a standard here granting the appropriate deference to the POTUS to make his or her determination. The Ninth Circuit chastised the factual narrowness of time of events the district judges used to assess the conditions they felt gave them the authority to nullify the Presidents statutory empowered judgement. The holding emphasized that the process requires a totality of circumstances risk analysis and that this requires great deference to POTUS to subjectively decide. Maybe that's why Congress gave this power to one Chief Executive rather than to slow moving platoons of clashing tribunals in myriad locales who must sign off on on such decisions wherever and whenever somebody raises a squeak.

[SKofNJ]

I agree with the concurrence that per a correct reading of Supreme Court precedent, the President's decision to employ the Guard is not reviewable by the courts, but only by the voters. The wisdom of this position is demonstrated by the twisted factfindings of the district court, as pointed out by the majority.

[MollyGodiva]

Neither of the cases cited have anything to do with reviewability by the courts. One was about a called up militia member to challenge the call up itself. The other is about which government to recognize and the militia is not even called up in that case. It is apparent that almost no one, especially the appeals court, has actually read the rulings they are claiming supports their side.

[Bruce Hayden]

And yet, you fail to address the question of why would the order be reviewable in the first place. Would there be injury in fact, to the plaintiffs? According to the concurrence, there was none.

I agree with SKofNJ, that the concurrence will likely be picked up by at least some of the Supreme Court (assuming that this decision is rejected en banc). Such a result would help shut down the creative jurisdictional theories being utilized to shut down Trump Administration policies by activist district court judges.

[MollyGodiva]

Having your state invaded and occupied by a hostile military force is quite an injury.

[MaddogEngineer]

Assuming your own conclusions does not create standing. You're advancing a political narrative.

But it is always nice to see liberals adopt the underlying premise of the Second Amendment, when convenient or expedient.

[MollyGodiva]

I have always held that 2A is about the right of states to have militias. This non-sense with Trump wanting to use the National Guard to occupy places he does not like reinforces that interpretation. An individual right to have guns never made any sense in the context of the Constitution as a whole or the actual text.

[Kazinski]

When Congress gives the President discretion, that discretion is unreviewable by the courts.

Marbury v Madison:
"whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . ."
https://www.archives.gov/milestone-documents/marbury-v-madison

[bernard11]

Two Trump judges support Trump. Film at 11.

[Stupid Government Tricks]

One lefty hates Trump. Film at 11.

[MollyGodiva]

Maybe it would be better if they supported federal law and the Constitution instead of Trump.

[ReaderY]

I agree with Justice Murpphy’s opinion in Duncan v. Kahanamoku that temporal proximity is essential. As Justice Murphy noted in that case, at the time of the Japanese invasion of Hawaii on December 7, 1941, the military’s proclamation of martial law and closure of the courts was undoubtedly lawful. But at some time afterwards, Justice Murphy suggested by April 1942 at the latest, the threat of invasion had diminished and the courts were fully capable of functioning. Accordingly, continuing to try civilians by military tribunal became unlawful.

I see the situation here as similar. Assuming for purposes of argument that in June 2025 the protests in Portland had gotten out of hand, they had become contained well before September.

Just as the look-back period in Duncan was a narrow one, the look-back period in this case is a narrow one as well. The militia can only be called called forth to address a current situation, not because of something that happened months or years in the past.

[windycityattorney]

+1

The statutory factors almost compel that result, don't they? Particularly factor in subsection (3)

(3) the President is unable with the regular forces to execute the laws of the United States.

Even in the heat of June - the courthouses were open. ICE was operating. Come September and there is no colorable argument that factor (3) can be invoked seriously without making a clown of yourself.

[ReaderY]

Rather than filing in District Court, I suggest that in future cases of this nature states seek the Supreme Court’s original jurisdiction.

These cases involve core sovereign state powers, control over their own military. And the matters involved are important enough that the Suoreme Court’s original jurisdiction is warranted.

[MaddogEngineer]

That's funny. You are assuming that state filing such a lawsuit wants it resolved by SCOTUS. They most certainly do not. They're best chance is always the Court not taking the case, letting a lower court decision stand.

Once again, we'll see whether the en banc 9th has learned the lesson of US v Trump and restrains its Resistance™ impulses. Don't craft an idiotic legal opinion which requires SCOTUS (Roberts) to correct it.