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.

[Josh R]

Somin didn't go to 3 years of libertarian law school to be called Mr.

[Don Nico]

What else would he be called? Comrade?

[Martinned]

Enemy of the People, presumably.

[Josh R]

Professor (Evil?).

[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.

[Riva]

Don't know about treason but lower court judges who think they can overrule the S.Ct. certainly should be removed. The president has exclusive authority to determine whether exigencies require federalizing the national guard. And "his decision is conclusive upon all other persons” Martin v. Mott, 25 U.S. 19, 30 (1827).

[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.

[Michael Ejercito]

By whom?

Two-thirds of the Senate?

[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.

[David Nieporent]

No, in fact, I do. I know that the Ninth is looking to take it up en banc.

[Armchair]

Really? How do you "know" the Ninth is "looking" to take it up en banc? Do you have inside information?

[Martinned]

Just read the comment immediately below this one...

[David Nieporent]

Do you have inside information?

No. I have public information.

[Armchair]

You have public information on what the 9th circuit is "looking" to do? As opposed that what it has already ordered?

[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.

[Stephen Lathrop]

Kazinski — Looking forward to military enforcement of reconstruction once again, across the deep South? If this SCOTUS green-lights troops for blue cities to please Trump/MAGA, there will be no reason why an enlarged SCOTUS, following passage by Congress of a renewed-from-scratch Voting Rights Act II, will not do likewise to red states under the next D administration. I would not favor either such decision. You (and SCOTUS) would be wise to reject the first one.

[Z Crazy]

It is not red states who want to prosecute ICE agents for kidnapping.

[Lee Moore]

This one should get reversed fairly quickly.

The 9th is not what it was. Just as the chances of a GOP-appointed majority panel have become higher with a pile of Trump 45 appointments, so have the chances of a GOP appointed en banc majority. Since the Dem appointees start at +2 (the Chief plus the panel Senior) the GOP appointees would need at least 6 of the other 10 in the en banc to force a tie, which I make roughly 25% odds. (Unless there are thumbs on the scale in the random selection.)

Of course the GOP appointees are not in any case a reliable voting block.

But reversal is not quite the slam dunk it would have been 10 years ago.

[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.

[Bruce Hayden]

That is questionable on several grounds. And, indeed, is at the bottom of this case.

One issue brought up in the concurrence is how does the court get jurisdiction to do what you claim? They have jurisdiction at this point to determine questions of law and Habeas Corpus, in regards to the federal government, but only Equity as a collateral matter. Yet here, there was no Habeas Corpus, nor really a legal issue. It was thus decided in Equity with no underlying legal or Habeas basis for jurisdiction.

Critical here, distinguishing this case from Newsome (which this Court questions is controlling), is that we are talking about a TRO that effectively exceeds 14 days (by tacking two essentially identical TROs together). That changes the legal basis for what the lower court can do (according to the majority).

[windycityattorney]

Why not read the opinions? The state of IL argued violations of the militia statute but also the 10th amend and few other theories not relevant to this response. The court reasoned that a finding that the president is in violation of the statute [by illegally calling up the militia in circumstances that don't warrant it] necessarily includes a finding it would violate the 10th amendment [i am paraphrasing from memory]. A continuing constitutional violation against the state [suing as a state] is injury in fact and confers standing because the federal executive branch is harming the state's sovereignty and the Governor's right to use his own national guard since they would not be available to him [for being called into federal service.]

I am not doing a great job of explaining but the decisions do a better job. So read them.

[Bruce Hayden]

Not sure where you think I should look in the opinion. The Constitution gave the right to control and call up the militias of the states to Congress, and they have long given much of that power to the President. Powers not given to the federal government belong to the states - but this isn’t one of those. Thats essentially what this opinion said, in summarily dismissing the 10th Amdt claim.

[windycityattorney]

Are you saying the governor of a state has no ability to call up their own state's national guard? And if there was an emergency (tornado or flood or earthquake or whatever) and needed the guard and they weren't available because they were doing fuck all errands for the President in a fake rebellion... that there is no injury to the State????

I am not following here.

In my understanding of history; the governors supported the President's decision because there was an actual invasion or whatever. Here, the governor's are emphatically rejecting the President's request. I would think that would factually distinguish the typical case from these cases being litigated right now. No?

[Riva]

Depends on whether one respects constitutional order and the separation of powers, which you obviously don’t. This is not a matter for judicial review.

[Bruce Hayden]

You seem to be posing this as either/or, when it is either/or/and. Yes, the governor of a state can call up his NG. So can the President. And when they clash, the President wins. It apparently actually happened. It was either AR or LA, where the governor called them out to resist racial integration. The President then federalized them, and most of the NG troops essentially just turned around, going to the US govt side.

[Riva]

The decision of the President, the Commander in Chief and head of a coordinate branch of government, to federalize the national guard is not subject to half assed judicial oversight as if the court were conducting a reasonable suspicion review under the "totality of the circumstances."

[ReaderY]

Sorry, bug just because he’s a member of a “coordinate branch of government” doesn’t give him powers to do something the Constitution specifically assigns to a different branch of governemnt

Do you think that because the President has the power to execute the laws and is a member of a coordinate branch of government, that means courts have no right to meddle with his discretion whether to search a house?

Your argument here is essentially the same logic. You infer from a title a bunch of powers you think ought to belong to that title, and you simply don’t care whether the Constitution actually assigns those powers to the President. It doesn’t even matter to you that it specifically assigns them to another branch. The President doesn’t have whatever power you think someone called “executor of the laws” or “commander in chief” ought to have.

The Constitution specifically assigns the power of “calling forth the militia” to Congress. That means the President just doesn’t have that power. End of story. If you don’t like it, blame the Framers.

[Bruce Hayden]

No. Congress can, and did, statutorily delegate that power to the President, the relevant statute here being 10 U.S. Code § 12406.
https://www.law.cornell.edu/uscode/text/10/12406.

[Riva]

Well, you've put some effort into your signature insult little troll, but you've spared every expense in your study of separation of powers. Not sure how much you're capable of understanding, so we'll make it simple. Does the status of the President as embodying a coordinate branch of government preclude the judiciary from second guessing the President's discretionary or constitutionally “exclusive” functions, such as those tied to foreign affairs, military command, or internal executive control of law enforcement? Yeah, actually it does. That's actually what the structure of the Constitution is specifically designed to do. Do federal courts abstain from hearing disputes that are inappropriate for judicial resolution because they belong to the political—not judicial—realm. Yeah that happens too. That separation of powers thing again.

Try reading Marbury v Madison first to give yourself some basic grounding, then work your way forward. Get back to me when you graduate shithead.

[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).

[ReaderY]

See my comment above. Like it or not, the framers of the constitutoon took a narrow and restrictive view. Maybe their view is erroneous. But it’s the view they took and what the constitution says. They assigned the entire “calling forth the militia” power exclusively to Congress. That means the President just doesn’t have it.

Indeed, if you go through the various powers Congress has, you’ll see that the framers assigned the power to initiate ANY military action of ANY KIND to Congress. The President just doesn’t have it. The Commander in Chief power is only the power to use the military to EXECUTE a mission that Congress assigned, not the power to decide whether or not to initiate such a mission. The power to initiate military action (as distinct from executing it once initiated) is in this country a legislative power, not an executive one.

[Riva]

See my comment above. Here's a new concept for you: Separation of Powers. And take a look at its cousin, the political question doctrine. Please stop with your sophomoric ramblings. They're giving me a headache.

[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.

[Randal]

Oh, you're not this stupid usually Kaz.

Whether or not Trump is acting within the scope of Congress's delegation is the very question the courts are attempting to answer. Not whether his actions are constitutional. Literally no one is arguing that his actions are unconstitutional.

[Bruce Hayden]

But the lower court likely doesn’t have jurisdiction, yet, to make that determination.

[Randal]

Bruce, you are usually that stupid, I'm sorry to say.

[Bruce Hayden]

Read the concurrence. One issue pointed out there is that at this preliminary point in the litigation, courts can address questions of law and Habeas Corpus. Equity is only appropriate as an auxiliary matter. Yet, that was what was done here - equity, in the form of a TRO.

[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.

[Bruce Hayden]

Which facts? That some 25% of staff nationwide that could be surged to Portland were being surged? That the staff being sent to Portland and who were already there, we’re working 12/7, and that wasn’t sustainable? And missing from the discussion was that this was only one of 3 or 4 offices under siege where the state or local authorities were denying local LEO support (3x25%=75%, 4x25%=100% of surgeable resources).

Moreover, as the majority pointed out, the lower court turned the discretion argument on its head, by ignoring the level of violence throughout the summer. The question is not whether the President was right that the current level of violence warranted calling up the. militia (which would mean substituting the Court's judgement for the President's, which is the opposite of deferential), but rather whether he had any facts to base his decision on.

[Stephen Lathrop]

Hayden — Tiny, peaceful demonstration cannot justify a complaint about a, "siege." Nonsense about historical stuff which is not happening now is no proper part of judicial review. Piling up irrelevances does not build a stack of persuasion.

[Bruce Hayden]

Read the opinion. The lower court judge set out the proper deference standard, then stood it on its head. The question that you, and the judge, insist on answering, is whether, on the evidence available, Trump’s decision to call out the militia. That’s not the proper, statutory decision, which is to defer to the President’s discretion. And the proper standard is whether there is any evidence that supports his decision. And there is. The staffing issues alone, set out in the opinion, are sufficient. With other Sanctuary cities and states joining in, that makes the Administration’s job of enforcing the immigration laws more difficult, if not impossible (which, of course, is the goal there), without more assets. But cabining the violence of the summer and early Summer is improper, because the question is what facts could affect the President’s decision, and not what you and the judge think are relevant.

[Bruce Hayden]

The question was not whether there was a “siege”, but rather whether the President had determined that “ (3) [he was] unable with the regular forces to execute the laws of the United States;” (10 U.S. Code § 12406(3)).

[John F. Carr]

The court allowed both sides to submit evidence. The judges in Oregon and Illinois both accepted the statements from locals that everything was fine. If there had been a serious conflict in the evidence the judge might have erred in doing so. Say, if federal agents showed video of riots in front of the ICE building just before Trump called out the Guard. In a normal trial the judge could accept the police log saying everything was under control. In a case where the President's opinion gets deference, probably not.

The judge might be wrong. The judge might be wrong because Justice Department lawyers were so convinced they were in the right that they forgot to present evidence. Then the judge is right as a matter of law but wrong as a matter of fact apparent to an omniscient observer.

[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.

[ReaderY]

Suppose Trump simply took over a unit of
Canada’s armed forces and deployed it for his purposes rather than the government of Canada’s.

Canada has been done no harm? Really? No standing to sue?

Each state is every bit as sovereign as Canada except to the extent it has surrendered its sovereignty to the federal government. Having a military is a fundamenyal and foundational aspect of sovereignty. And the Constitution, reinforced by the Second Amendment, guarantees to the states that aspect of sovereignty under our Constitution except under limited circumstances.

Barging in and taking over a unit of a sovereign state’s own military without its consent is a grave affront to a state’s sovereignty and obviously harms it.

Frankly, taking over a state’s military unlawfully is casua belli and ought to be handled by the Supreme Court itself under its original jurisdiction.

[MaddogEngineer]

Why do you think this is clever? This is as dumb a response as the guy above who wants the Trump judges tried for treason.

Trying to pretend that Trump's attempt to federalize the National Guard of a state under contested circumstances which may not meet the federal statute requirements, a statute explicitly authorized by the Constitution is equivalent to him attempting to commandeer a foreign military force?

The 14th amendment settled the questions about the sovereignty of the several States. Weird to have someone arguing for the Confederate position here, just to own Trump. I'm not sure what federal law was in 1861, but I bet South Carolina would not have consented if Lincoln had attempted to federalize its militia.

I'm not arguing that a state does not have standing here, only that its standing may be independent of it having suffered a harm to its dignity/sovereignty as you are trying to frame it, like ordinary plaintiffs like federal workers getting fired. Because I'm pretty sure Arkansas was going to argue that using its National Guard against it was a similar harm to its interests. But because of logistical and time constraints, President Eisenhower decided to use the 101st Airborne instead to ensure law and order when the Little Rock high school was integrated. Whether the Guard or Regular Army, he was doing that because he could not count on local authorities to maintain order for all. (No, I am not making a legal argument needing a rebuttal that those circumstances are exactly analogous to Trump's attempts here. But neither were you when you started talking about "sovereignty".)

[ReaderY]

The 14th Amendment authorized Congress to- not the President but Congress - to enforce violations of citizens’ civil rights by a state.

Can you explain how the 14th Amendment is relwvant here? How exactly is the State of Oregon violating its citizens’ civil rights? Is anyone even claiming it is doing so? How in the world is this in any way similar to what President Eisenhower did in Little Rock, which WAS a 14th Amendment enforcement action? This case has nothing to do with the 14th Amendment.

The Second Amendment guarantees that militias belong to states unless there is a lawful basis for federal takeover. That means States always have standing to contest the loss of their militias. As the 2nd Amendment plainly says, for a free state to lose its militia is to lose its security. Of course that’s a concrete injury. That’s true regardless of the claimed basis for federalizing the militia.

[dwb68]

States ceded control of the military to the federal government when when they became a state. Go and read the actual opinion, particularly concurrence. The case law on this goes back two centuries.

Congress is in charge of the military; they delegated to the president. Washington and Madison both called fourth state militias to enforce unpopular laws.

[Sarcastr0]

You should know better than arguing that a concurrence in an appeals court that's going to go up for en banc is the Super Legal Truth.

It's like an appeal to authority from someone who doesn't understand the legal system.

[loki13]

As I noted in the open thread when this came out ... the concurrence was ... really bad.

Moreso because I watched the oral arguments and I genuinely thought that Nelson seemed engaged on some of the issues- I knew how he was going to vote, but I didn't think he would go out of his way to express his bona fides. I was wrong.

[ReaderY]

They absolutely did not. The federal government has only a very limited power to take over a state’s own military. Except in limited circumstances, a state’s military is its own. The 2nd amendment doubled down on this, recognizing the necessity of their militias to states.

[Stephen Lathrop]

dwb68 — Are you talking about Shay's Rebellion? If so, it's kind of obtuse to say the response was done to, "enforce unpopular laws." Armed attacks on the government poll less favorably than demands to repeal a new tax.

[MaddogEngineer]

Why would dwb68 be talking "Shay's Rebellion", which happened in 1786 before the Constitution was drafted?

There is another...rebellion.

[Stephen Lathrop]

MaddogEngineer — That's how cause and effect works. You have an antecedent and a subsequent. Causal influence flows only one way, from the former to the latter. Shay's Rebellion remains widely acknowledged among historians as influential not only in the drafting of the Constitution, but for providing impetus to hold the Constitutional Convention. Because of the specificity implied by, "unpopular laws," in two specific named instances, I inferred reference to that well known passage of history.

Is there something else you want to bring to my attention?

[Bruce Hayden]

No. They don’t. As others have pointed out, the states ceded this power to the federal government when they became a state. Which is to say that the states only have power over their NG when the federal government allows them to have it. The Supreme Court precedent for this dates from the 1840s, some 180 years ago, so not a new thing. Read the Concurrence.

[Sarcastr0]

So all those national guard laws were useless since it was long ago delegated away all along?

I’m not sure that argument is even before the court.

[ReaderY]

The Constitution spells out the limited circumstances in which the federal government can take over a state’s militia. States did NOT cede their entire power over their militias to the federal government. The 2nd Amendment reiterated this.

[dwb68]

lol. No.

[Stephen Lathrop]

Hayden — Almost every time a commenter on this blog says, "pointed out," what follows is nonsense. Why is that?

[Mr. Bumble]

Speaking of nonsense, you should break down and invest in a mirror.

[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.

[Brett Bellmore]

"I have always held that 2A is about the right of states to have militias."

You could hold that the Moon was made of green cheese, and it would have as much legal force.

"This non-sense with Trump wanting to use the National Guard to occupy places he does not like reinforces that interpretation."

Well, yes: In the sense that you're engaged in motivated reasoning, and this gives you motive, it reinforces your reasoning.

"An individual right to have guns never made any sense in the context of the Constitution as a whole or the actual text."

A pity for you that the Constitution was written by people who didn't agree with you.

[Stephen Lathrop]

You could hold that the Moon was made of green cheese, and it would have as much legal force.

It was pro-gun advocacy that turned 2A jurisprudence into a politicized mess. It will stay politicized for the foreseeable future. That means if you ever lose the politics, you will lose legal reliance along with it.

That is Scalia's legacy in Heller, and its spawn have only reinforced that legacy. Pretext of a case decided on the basis of history guarantees a day will come sometime that an opinion based on historical nonsense will eventually be ruled mistakenly decided.

In that context, one of the weakest arguments you can make is an unsupported claim to personal insight into a historical past Scalia demonstrated he did not understand himself. It is mind boggling to see you try again and again to insist you understand the 2A because you can read the words, but only after you cut out some of the words, and disregard a historical context you have never even noticed, let alone studied.

That is a historical style even weaker than Scalia's. which would scarcely seem possible without you to demonstrate how to do it. You would do better to concede that gun advocacy has become a purely political topic, and then get ready for political compromise when events someday undermine the political viability of absolutist pro-gun advocacy. That can happen, and because too many people with guns do not care whether it does happen, that will happen.

For now, you number yourself among those who do not care. It would be wiser to care more.

[Bruce Hayden]

You can start with Heller, which effectively demolishes your argument. The Militia Clause is merely precatory - stating one reason for the RTBA, not the only one. Stating your mistaken beliefs as you did, merely shows your refusal to accept the Constitution as definitively interpreted by the Supreme Court.

[Mr. Bumble]

Hey Bruce, no line cutting in. You stole Il Douche's (SarcastrO) place. He gets first dibs whenever Brett comments.

[Stephen Lathrop]

Hayden — Your comment reads as if you were chanting.

[Bruce Hayden]

I am. Have to in response to Molly’s chants. So, yes, I have said the same thing, almost verbatim, numerous times here. Heller still controls in regard to the Militia Clause of the 2nd Amdt.

[MaddogEngineer]

Saying "Trump wanting to use the National Guard to occupy places he does not like" is more gaslighting by you again assuming your own conclusions. You didn't complete the sentence, about the right of states to have militias...as a check against a tyrannical federal government. NB: the militia is more than the National Guard.

Because it must be my imagination that the local populace has been harassing federal agents. We can debate to what level that is occurring. But not that nothing has been happening. Even if local authorities have belatedly stepped up, they've demonstrated their willingness not to act, which could occur again at any time. Since the left is fond of the "one life" standard (when it comes to gun control, health of the pregnant woman, net neutrality etc), if even the safety of one federal agent is threatened, then maybe this is justified.

[Sarcastr0]

Harassing is speech.

There is no statute saying 'if the federal employees are feeling harassed then call out the NG.'

Legally, nothing that meets the requirements in the statute is happening.

And lead what gaslighting is! I may disagree with you, but you're not a shitposter; don't act like one.

[MaddogEngineer]

LOL assuming your own conclusions "nothing that meets the requirements in the statute is happening"...ah the gaslighting.

No, I am not saying that something that meets the statutory standard is happening everywhere, all the time. Like I've said elsewhere in the comments here, particular facts do matter.

But I will not be gaslit that nothing has happened here. As dwb68 has been saying, there is a pattern of conduct here. Sure, in many places, local authorities have stepped up and unrest has subsided. Whether that was a surge problem, or a strategic hesitation from local action is still up for debate, or encouraged by the threat of NG activation. But just like a party asking to dismiss a lawsuit fearing an adverse ruling on appeal and asserting mootness, I'm not convinced that more unrest won't happen in the future, or be tolerated by local authorities. Like I observed in another comment here, Governor Newsom is bragging that his new law forbidding law enforcement from wearing masks applies to federal agents. The hostile public statements of local authorities to federal immigration is more relevant than Trump's alleged desire to deploy the NG against other West Coast cities.

Like dwb68, I'm not a fan of this kind of National Guard activation. But I'm also not a fan of blue states letting local mobs do what they want because they sympathize with their motives, going back to 2020. Or 2021. But then, I thought the National Guard should have been deployed around the US Capitol. Alas, Nancy Pelosi disagreed.

[JoeFromtheBronx]

"An individual right to have guns never made any sense in the context of the Constitution as a whole or the actual text."

I think having the right to a common item of self-defense for one's person, home, and personal effects makes some degree of sense given a text stating I have the right to be secure in them.

Ditto as a matter of state constitutions, common understanding, historical practice, and original understanding (of the 14th Amendment at least -- talk of freemen using arms for self-defense, not just as a part of a collective militia was relatively common). Such things clarify, for instance, an unenumerated right.

Arguably, overall, a case can be made that the right to secure such things might be a collective concern. But on the low bar provided, yes, I think it makes some degree of sense. Regarding, "the Constitution as a whole."

Now, I do think the Second Amendment itself was ratified for a specific militia purpose. This purpose over time was replaced in the public's mind but for those who choose originalism, the original purpose was tied to the state control of the militia, fear of national power invading it, and other things of current day relevance.

[JRipplefireEsquire]

>I have always held that 2A is about the right of states to have militias. <

The context of the entire Bill of Rights is that they are all rights of the People against the government. The 2A specifies itself as the "right of the People to keep and bear arms" which "shall not be infringed." To cast out that declaration in order to transform it into a mere right of the state is most incongruent.

[bernard11]

So on Sunday someone comes and, without permission, takes my car and goes off with it for the day, bringing it back in the evening.

No problem. Right? I was just home watching football all day and didn't need it.

[MaddogEngineer]

I would say you're not this dumb, but then I realized that may be facts not in evidence.

The president federalizing a state's National Guard does not in many cases require the consent of the state. Pretty sure Arkansas was going to make that argument in 1957. President Eisenhower did challenge their governor about that--nationalizing the entire Arkansas National Guard which had units already deployed by the state to support segregationists. But for a variety of reasons, decided to primarily use the 101st Airborne instead to enforce integration, invoking the Insurrection Act. Though as I understand the situation on the ground, it wasn't very insurrectiony.

[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

[Randal]

Whether or not the President's policies fall within the contours of the discretion Congress gives the President is, of course, reviewable by the Courts.

[Bruce Hayden]

Ultimately, maybe. But not at this point in the litigation.

[Stephen Lathrop]

Kazinski — I might suppose your capacity to read accurately Chief Justice Marshall was suspect, except for your skillful editing and deployment of ellipses.

[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.

[Stupid Government Tricks]

You should have wangled an appointment from Biden. You obviously know more than Ketanji. Ah, but you got passed over for not being the right race and gender. Too bad. We are all so much the poorer for it.

[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.

[Bruce Hayden]

And the record shows that the level of resources available and being utilized cannot be maintained for an indefinite period of time.

Besides, as the decision points out, the standard of review (if possible at this point in the litigation, which the Concurrence questions) is not whether the judge believes that the NG is required, but rather whether the President had reason to believe it. The judge was, essentially, substituting his own determination for that of the President, which is the opposite of the deference required by the statute. And that is where the activities of last summer, into September, become important.

[Michael P]

I finally agree with you on something: the present circumstances do not justify trying civilians in military tribunals. Even when they are engaging in insurrection.

[ReaderY]

It’s an analogy. But a very appropriate one. The Constitution itself limited the circumstances in which troops could be brought in, and Congress also imposed limitations. Bringing in troops to substitute for civilian law enforcement is an emergency remedy, to be limited to true emergencies only. It poses dangers to liberty analogous to trying civilians in military courts.

[Bruce Hayden]

Which is not an issue in this case.

[David Nieporent]

You have misinterpreted Duncan v. Kahanamoku. Justice Murphy's opinion in that case — a concurrence, not the controlling opinion — did not contend that military tribunals "became unlawful." It said — as per Ex parte Milligan — that they were unconstitutional as long as civilian courts were capable of functioning.

And the actual holding of the case — which Murphy joined — did not turn on whether suspension of the courts was constitutional or whether conditions in Hawaii still justified martial law. The question in that case, the only one decided by SCOTUS, was whether the statute pursuant to which martial law had been declared allowed the military to close the courts and try civilians in military tribunals.

[ReaderY]

I think I was being clear enough when I said I agreed with Justice Murphy’s opinion.

And I don’t understand your attempt to distinguish between “unlawful” and “constitutional.”

Regardless, Justice Murphy thought temporal proximity critical. Imposing martial law in Hawaii in the event of invasion was a matter Congress had committed to executive discretion. Justice Murphy said that at the time of the invasion, this use of discretion was legitimate and lawful (and constitutional), but at some point afterwards, it stopped being so .

Understanding I am only making an analogy based on a concurring opinion, nonetheless I think the analogy relevant and instructive for this case, and I think the reasoning of the concurrence sound. The 9th Circuit panel said that courts can’t impose “arbitrary” temporal proximity restrictions on the President’s decision to exercise Congressional discretion to employ military forces for ordinarily civilian matters. Justice Murphy’s opinion says not only that they can, but they must.

[David Nieporent]

And I don’t understand your attempt to distinguish between “unlawful” and “constitutional.”

I'm not sure what's unclear about it. If Congress had passed a law saying, "In the event martial law is declared in Hawaii, the government has the authority to close civilian courts and try all criminals in military tribunals," then the government's decision to try people in tribunals would've been lawful. But it still might have violated the constitution. (The majority did not rule on that.) But there was no such law, so the government had no authority to do that in the first place.

[David Nieporent]

Regardless, Justice Murphy thought temporal proximity critical. Imposing martial law in Hawaii in the event of invasion was a matter Congress had committed to executive discretion. Justice Murphy said that at the time of the invasion, this use of discretion was legitimate and lawful (and constitutional), but at some point afterwards, it stopped being so .

Murphy did not in fact say anything of the kind. Although he mentioned the Chief Justice of the Hawaii Supreme Court's view that by April of 1942 there was no reason to keep the courts closed, that was an observation, not the basis of Murphy's concurrence. His opinion had nothing to do with the propriety of imposing martial law or "temporal proximity" to anything. His contention — again, following ex parte Milligan — was based on whether the courts were in fact capable of operating.

The entire point of SCOTUS's opinion — which Murphy joined — was that imposing martial law does not mean you can close the courts. Neither SCOTUS's opinion nor Murphy's concurrence questioned whether the imposition of martial law itself was legitimate, at the time it was imposed or at any time thereafter.

[Stephen Lathrop]

ReaderY — And of course even if a long-interval look-back is thought justified, the fact of previous containment without resort to military intervention stands against need of military intervention now. You cannot argue in good faith that a court needs to look backward, but only for the purpose to confirm the argument being urged by an interested party.

[Bruce Hayden]

It’s not up to the court to look backwards here. Sorry, but as the majority pointed out, that turns deference to the President on its head, and tries to second guess him. Did the President look at te violence last summer? Probably. But he also very likely looked at staffing levels across the country within the relevant agencies, and working employees 12/7 in this office, and using 25% of Durga le assets is far from sustainable. And that is probable sufficient.

[ReaderY]

In Duncan v. Kohanmoku, the Supreme Court did not defer to the President on the question of whether an invasion existed, but instead made its own assessment of the facts and concluded it didn’t. The majority opinion asked whether courts were prevented from functioning. It concluded they weren’t based on the judiciary’s own assessment of the facts. The Supreme Court second-guessed the President and concluded he was wrong.

Why doesn’t that case resolve such questions against you?

[David Nieporent]

Again, this is some other case; that doesn't even remotely describe anything in Duncan v. Kohanmoku.

[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.

[Brett Bellmore]

I think the lesson they've learned is, "Even if we're sure to win a the Supreme court, we can get our way for months, maybe years, before it comes to that."

[Brett Bellmore]

Sorry, sure to lose at, not win.

A lot of lower courts seem to be operating on that principle now: Even if they're sure to be overturned by the Supreme court, until that happens they get their desired policy, so why not?

[Sarcastr0]

Following normal order is just more liberal bad faith, because all the judges are in on it!

Really?

[Don Nico]

That, gaslighto, is the entire point of forum shopping.

[loki13]

...I remembered you as one of the more reasonable people here, Don Nico. And yet ... you seem to mostly be engaged in name calling.

Sarcastr0 has been posting on the VC for a long time (a VERY long time) and while I don't always agree with him, he generally provides substance. Heck, I can remember his evolution from his schtick (given his nom de plume) over time. Is there a particular reason you're doing this?

Anyway, while forum shopping is usually a good argument (just like we say SO MANY CASES in a few Texas district courts and the 5th during the Biden administration) I would point out that, um, when it comes to this particular issue...

You can't forum shop. You know that, right?

[Mr. Bumble]

"... he generally provides substance."
A fact not in evidence.

[Life of Brian]

and while I don't always agree with him, he generally provides substance

"Nathan Poe, Nathan Poe -- please pick up the nearest white courtesy telephone. Nathan Poe."

[MaddogEngineer]

No, we don't know this, about forum shopping.

Because sometimes the point of forum shopping is not ultimate victory, but merely a delaying tactic hoping extra-legal contemporary circumstances shift in your favor.

Which is why it would have been dumb here for those involved to try and file an original case at the Supreme Court. A higher percentage of an immediate loss, probably without any intermediate injunction.

As for Sarcastr0, he recently showed himself to be a partisan hack, dumping a local news story on me about ICE deporting a possible green card holder, to try and show how terrible a person I was for not reflexively condemning this administration no matter what, because I expressed skepticism about the story. A story which turned out to be a hoax. So no, he does not always provide substance here on hot button issues. Here we are once again talking about Trump immigration enforcement. Not going to ignore his track record.

[Sarcastr0]

First, this is a Circuit Court case, so we do know there is no forum shopping.

Second, I'm not sure what story you're mad at me about. A search for ICE deporting possible greencard holders turns up plenty of possibilities though none seem hoaxes.
Though even if I fell for a hoax, dunno if that alone is enough to make me a hack.

[MaddogEngineer]

Professor Adler has made some helpful posts about where lawsuits are filed. This is not that, because the choice here was between the obviously friendly ground of the 9th circuit, its district courts, and blue state governance, versus original jurisdiction in the US Supreme Court. That is also forum shopping, and the answer should be obvious to all. I already gave answered it above, but I guess you didn't bother reading that. Aside from shorter resolution time, unlike to get a durable intermediate injunction from SCOTUS. The virtual certainty of the 9th versus the uncertainty but more more skeptical SCOTUS.

[Sarcastr0]

Portland = 9C. It. Cannot. Be. Forum. Shopping.

You seem really really committed to a story of ICE under siege in blue states because the blue government are all pro-illegal. And the President using his legal power to use the NG to put down rioting libs.

I will not speculate why you are so committed to such a false narrative, but none of it tracks the law or facts.

[MaddogEngineer]

So I've explained twice now what I meant by forum shopping in the context of a Supreme Court original jurisdiction alternative. That you keep telling me I'm wrong because the 9th circuit cannot be forum shopped (something I agree with) is just more proof of your bad faith engagement here--more of the same as you trying to shame me for expressing initial skepticism of what turned out to be a immigration hoax report.

No, I'm not "committed" to those facts. I'm saying that such a thing may be happening in some, but not all, of these cases. In LA and Chicago it has. I'm more circumspect about Portland, because it's a qualitatively different thing happening. Not immigration enforcement, but has a long simmering mob action around the federal courthouse. Which may not be currently active, but has stuck in Trump's memory such that he's insisting something be done, whether anything actually needs doing or not.

Which is why I've said elsewhere here I'm not accepting administration actions or arguments in all cases. I haven't been arguing specifically in favor of the Portland situation, not knowing what the recent level of local law enforcement effort is or the latest on the ground. I'm objecting to the gaslighting from those that say that no federal agents have been harassed or interfered with. Harassed meaning physically intimidated by mobs, not just some innocuous "speech" as you tried to pass off earlier.

I don't know whether the ebb and flow of mob action is organic to these mobs, or coordinated in some way in light of these court cases or current public relations campaigns. Or if local (and federal) enforcement has worked. The thing about deploying the National Guard is that it's a kind of Shroedinger cat deterrence. When it's deployed, it often solves the problem--acknowledging it has not been deployed widely because of injunctions. That circumstances have changed on their ground does not negate the original justification for federalization. Saying that Guard is no longer needed is a different argument than the Guard was never needed.

I completely agree that Trump might try and use a federalized guard for actions beyond the initial justification. That's something I'm leery of too. But the best preventative for that is not going to court pretending Trump has no justification to federalize the Guard. It's for local authorities to make good faith efforts to protect federal property and agents, so that Guard federalization is unnecessary.

[Sarcastr0]

In LA and Chicago it has.

No, it has not. It's dudes in frog costumes.

Either you're uncritically believing the drama tweets DHS sends out these days or your threshold is so low as to be legally a blank check.

[Joe_dallas]

Loki - Sacastro has rarely, if ever, provided anything of substance

[David Nieporent]

If a higher court has ruled on an issue, a lower court is bound to follow it. If a higher court has not, a judge's job is to, you know, judge. Not to predict what SCOTUS might later rule and do that.

[ReaderY]

I think SCOTUS will rule in their favor.

[dwb68]

I was on the fence about theI was on the fence about the National Guard. I don't like the look of it.

That said, after reading this opinion, I think this became a fuck around and find out moment for Oregon politicians.

Protesting unpopular laws is fine; throwing rocks, breaking windows, assaulting people, that's not fine; the Portland Police not assisting to break up the violence is also not fine. The Portland didn't just allow ice officers to be assaulted, they allowed protesters to assault each other.

The concurrence has three solid examples from the founding era of Presidents suppressing violent protests of unpopular laws with what was then essentially the National Guard (state militias).

Chicago's case might be closer, I don't know to what extent those protests are violent and federal officers are being assaulted.

My advice to the Chicago and Portland Police would be: if you don't want to see the National Guard get your shit together and quell the violence.

[loki13]

The majority opinion is written with made-up and cherry-picked facts.

The other big issue is the deliberate conflation of protest activity and inability to enforce federal law. For example, in Portland ICE has been going about its activity as normal- all that stuff you see at the front entrance? They've been using the other entrance. They are still doing all their enforcement activity.

The issue with protest is that it is a core right that the administration is seeking to destroy (note all the threats made to try and intimidate people before the No Kings protest this weekend). So we get this kind of wishy-washy pushback- for example, blaming any criminal activity anywhere on peaceful protesters to destroy their right to protest, or counting thuggish behavior of police arresting peacheful protestors and ramping up BS charges (the protester repeatedly hit my closed hand with his face- that's assaulting a police officer!) and then counting them.

Or the old favorite. Playing footage of other things (like 2020, which actually was a big deal, or even other countries) and saying it's what is happening now.

[dwb68]

I counted 11 and 1/2 page of so-called cherry picked facts in the opinion. That's a lot of cherries. A whole orchard in fact.

"The other big issue is the deliberate conflation of protest activity and inability to enforce federal law."

One, throwing rocks and breaking windows is not protest activity.

Two, there is case law on this from the founding era.

Rather than all the lawfare, the Portland Police should just do their job and stop the violent protesters

[loki13]

Read it again, and do so critically (like a lawyer). If you don't know what this means, here's the accurate characterization from the dissent-
"The district court’s factual findings, which the government does not challenge on appeal, and which are not clearly erroneous in any event, fully resolve this issue. In the two weeks leading up to the President’s September 27 social media post, there had not been a single incident of protesters’ disrupting the execution of the laws. I repeat: not a single incident for two weeks. Here are summaries from police reports for the five days preceding the President’s social media post.
September 22: Approx. 7-10 people. No calls.
September 23: Few people. No activity.
September 24: Approx. 10 people. No calls.
September 25: Approx. 20 people. No calls.
September 26: Approx. 15 people. Energy low, minimal activity.
No incidents.
A police officer’s report from September 26 stated: “Throughout the day we observed approximately 8-15 people at any given time out front of ICE. Mostly sitting in lawn chairs and walking around.”

Again, there was no dispute of the factual findings by the administration. Those are the established facts.

Look at the dates again. Then notice that they are throwing in a lot of other events that don't matter into the record.

Look, I'm not going to convince anyone who has already made up their minds. If you actually believe that the President can deploy the national guard pretty much at his sole discretion, that's ... a belief. If you believe that Portland is a war zone ... that's ... a belief. I will respectfully disagree with those beliefs.

[dwb68]

Nah. This isnt 2015 when the mayor can say, "give those who wished to destroy space to do that."

The Supreme Court will not be peevishly focused on one date. They will see a pattern and practice of violent riots, an unsustainable surge of federal officers to protect the buildings, and the Portland Police letting it all happen. It takes time to surge the National Guard. The whole pattern matters.

My advice, again, is that instead of lawfare that will lock in an unfavorable precedent of the President using the National Guard to quell violent protestors, the Portland Police should step in and jail people. Harshly, in some cases, for the repeat offenders.

I don't know about the Chicago case but the Trump admin will win this case easily at the Supreme COurt 6-3.

[loki13]

Peevishly focused on one date? You mean ... peevishly focused on actual facts?

Again, if you are simply saying, "No biggie. President can put troops in our communities whenever he has the feelz," then ... that's your opinion.* I happen to strongly disagree and feel that it's about the most un-American attitude one can have, and would not want to give that power to any executive of any party- even one I did not personally think was petty and vindicative.

But don't try and argue that the actual facts on the ground warrant it. Just own it.

*I would add that this is the position that the administration has taken, and that the concurrence has also articulated. Honestly, that's terrifying to me and seems anathema to the rule of law, but it is what it is.

[dwb68]

Pattern and practice, leading up to the unsustainable surge of federal officers and deployment of the guard.

[loki13]

That's not what the facts show. And the facts were found.

But I really want you to think about this for a second, because we are talking about the President ordering the military deployed domestically AGAINST the will of the localities (the municipality and the state). Try and put aside your priors, and look at this from first principles.

Is this a power you want all executives to have? There aren't riots. There isn't out-of-control crime. There is just a pretextual desire to deploy the military without any current crisis. Is this something you're comfortable with? It appears to be the case, which ... is shocking to me. But I've been shocked a lot by what people have decided that they are comfortable with when it is in their partisan interests.

(Seriously, I never thought I'd see the supposed conservatives on the VC cheering jack-booted federal troops deployed in the states because the Executive wanted it. But I've also never understood populism or why people believe transparent lies that can easily be disproven, so there's that.)

[MaddogEngineer]

LOL AGAINST the will of the localities, not enforcing local law as rabble attack federal facilities and agents.

You really should try letting go of your derangement, with this belief in a pretextual desire to deploy the militiary. To the extent that Trump desires this, it's because mobs are interfering with federal agents. If that stops, so will his desire. I'm shocked, but not, that you don't understand that's why people are "comfortable" with this. Because some of us are uncomfortable with these mob actions and local authorities standing by letting it happen. You are trying to gaslight us that this isn't happening.

But I guess it's much more enjoyable to believe his true secret desire is being a military dictator and he's engineered this entire situation, just like Chancellor Palpatine, to justify this end goal to punish his opposition.

The problem with that theory is that Trump is an idiot with a childish short attention span and a desire for instant gratification.

[David Nieporent]

To the extent that Trump desires this, it's because mobs are interfering with federal agents.

I guess that desire only developed sometime after J6.

[MaddogEngineer]

You would be wrong, directing that comment at me.

I realize it's confusing that someone here does not completely align with the red/blue team. If you search the other comments, you will see that I said I also would have favored National Guard deployment around the Capitol on Jan 6, like it had been around the Lincoln Memorial days earlier. But alas, Nancy Pelosi didn't like the optics of that. As the former Capitol Hill police chief has again recently commented on publicly, that his pleas and advice went unheeded. Mobs are bad. All mobs. There is no such thing is my mob or your mob, being often uncontrollable things.

[David Nieporent]

I was not directing it at you; I was directing it at Trump. You speculated about Trump's motivation, and I was saying that this is inconsistent with his past behavior.

[dwb68]

lol, its only "being deployed" against people throwing rocks and interfering with the enforcement of federal laws they dont like.

If you want to blame someone, blame the Portland Police, who are standing by while it happens.

[loki13]

....Sure. Assuming that Portland is a war zone, and that the Portland Police department aren't enforcing the law, and that federal law can't be enforced ... then maybe I could get behind that.

Unfortunately, that's a factual issue. And you seem to keep moving the goalposts. If you have a desire policy outcome, that's fine. But don't tell me facts I know to be untrue, and cite to an opinion I have read (and that I am familiar with, as I am all this litigation) and then keep dodging the actual issue.

If that's how you need to do it for yourself, that's fine! But I will go back to what I said before- if this is the predicate in your head to have federal troops deployed, it's ... the rule. Moving forward. I don't want it to be the rule for any executive. You are happy with it. Which either means that you totally trust that the Executive is always going to stick it your enemies, or you don't care about silly rules and stuff.

Like I wrote, I genuinely thought stuff like this would be one of the few things most people could agree on (because it's not the kind of thing we generally approve of in this country), but I don't understand the appeal of populism or motivated reasoning.

You do you.

[David Nieporent]

But I really want you to think about this for a second, because we are talking about the President ordering the military deployed domestically AGAINST the will of the localities (the municipality and the state). Try and put aside your priors, and look at this from first principles.

Is this a power you want all executives to have?

Well, all except the black ones. After all, these are the same lunatics who ranted insanely about a Jade Helm conspiracy theory when Barack Obama was president.

[Bruce Hayden]

It is pretty much at the President’s discretion - as long as he has some facts on his side. So, no, the judge doesn’t get to second guess him. Which this judge erroneously did.

The dates of disruptions, etc, are irrelevant here. What is far more important are the staffing issues discussed in the main opinion. They show that continuing operation, at current levels, at current staffing levels, is infeasible. Security personnel are on mandatory 12/7/365 shifts, and 25% of the agency’s surgable manpower is currently tied up in Portland.

The judge does not have the judicial power to second guess the President here. That judge cannot, legally, engage in, essentially, de novo review of the situation, all he can legally do is look to see if the Resident has ANY facts on which he could have made his decision. He failed to do that.

[MaddogEngineer]

Yes, this is the context of all of this. The states, especially local authorities, are trying to pretend there has been no unrest on the ground justifying mobilizing the guard to protect federal agents, while also bragging about their citizens in the streets resisting enforcement of federal immigration law.

What has been happening does not rise to the level of insurrection, which is why the Insurrection Act has not been invoked. But neither is it nothing, and if local authorities are going to play dumb, then there will be a justified federal response. But I agree, the facts in each locale do matter. My issue is how much credence the courts give to the local authorities trying to rebut the president's determination. I think pages 20-21 of the appeals decision describes this well. There is more than nothing going on. If it were nothing, then there would be a justifiable legal objection to this federal activation. But it's not thing. And in that case, the president's determination should be given deference in law.

As you say, local authorities control their own fate here: if they get their shit together, the president loses his justification. But that's the game they're playing here, as I said at the start of my post.

[loki13]

Wow. So to clarify- a judge on the Ninth Circuit has sua sponte requested briefing on whether this case should be reheard en banc.

Supplemental briefs are due midnight (PST), October 22 (Wednesday).

This is ... unusual. We are talking about stays of injunctions here. And yet.... I have two thoughts.

1. People can't ignore actual facts, including judges. I don't think it has escaped notice that this is emboldening Trump to threaten other cities on the West Coast (San Francisco, etc.). I think that there are certainly some judges that would like more than a 2-1 panel decision (especially this panel decision) to give Trump a green light to march troops into every west coast city whenever he has the feelz.

2. On the other hand, I don't think that this means that there will be an automatic reversal of the panel, either. En Banc is ... tough. Especially in the Ninth. I'd say that this has a chance (cue the quote from Dumb and Dumber) but I wouldn't be getting my hopes up.

3. Reminder that the Ninth has weird en banc procedures. IIRC, you need a majority of all the judges to grant en banc, and then you get ... 11 randomly selected (10 random + CJ) judges to hear the argument.

Which means that it's possible you get a good or bad ... en banc panel even if you get past the threshhold for en banc.

[Mr. Bumble]

"Which means that it's possible you get a good or bad ...en banc panel..."
Where good means deciding against King Trump and bad means deciding in his favor?

[Bruce Hayden]

Good or Bad depends on your position. A good one for the Dems is with a Dem majority of judges (more likely) and a good one for Trump is a Republican majority (less likely).

[Martinned]

a good one for Trump is a Republican majority

Well, a Trumpist majority. There are plenty of Republican/Republican-appointed judges on the Federal bench who are still doing their constitutional duty.

[John F. Carr]

If you assume liberal and conservative judges will vote as blocs, en banc review is the correct choice for liberals. They probably win and if they lose their position is not much worse off, if it is worse off at all.

[Sarcastr0]

It's like an LSAT exercise.

Not all Trump appointees are Trump judges.
All Trump judges are GOP appointees.
Not all GOP appointees are Trump judges.
Non Dem appointees are Trump judges.

[MaddogEngineer]

I agree that people can't ignore actual facts. I disagree as to what actual facts are being ignored, and by what people.

Part of the problem here is The Resistance™ trying to make Trump's spontaneous public comments as legally binding or relevant. What Trump may threaten cannot or should not change the legality of what the administration has done to date. This is not one big jury pool being poisoned by a prosecutor. To the extent that Trump is "threatening" other West Coast cities, that may actually be justified. But that goes back to what facts are accepted versus ignored.

(This is not a blanket endorsement of any/all administration action here.)

[Bruce Hayden]

Which point, the opinion made clear.

[dwb68]

.

[ReaderY]

The 2nd Amendment’s first clause, which guarantees to the states a right to have a militia, is part of its content rather than mere meaningless preamble. It’s intersting to see how people who claim to support the 2nd Amendment work to explain the parts of it they don’t like away.

The states preserrved their right to have their own militias in the original Constitution, which could be federalized only under limited circumstances. And if there was any doubt, the 2nd Amendment first clause reiterates the point that militias and makes it clear that belong to the states, not the federal government.

The 2nd Amendment makes clear that militias are necessary to states’ freedom and security. That means they have standing to complain that their militia - their freedom and security - has been unlawfully taken from them.

It’s strange to see all these supposed 2nd Amendment people either flatly ignoring it or saying the words are meaningless fluff.

If I were Oregon or another state involved in a case like this, I would cite the 2nd Amendment as well as the 10th as part of the argument that a state in fact has standing to contest unlawful takeover of its militia.

[dwb68]

"The right of the people to keep and bear arms."

A sad, debunked theory of the Second Amendment.

No.

[Stephen Lathrop]

dwb68 — Arbitrary editing of relevant text is not the stuff of historical context. The contextually focused view of the history of the 2A demands the militia clause, because only the militia purpose for a right to bear arms could command uniform assent to ratify among the states.

Otherwise, the states were content to guarantee personal arms rights variously, with each state tailoring its own grant of rights to its particular circumstances. Virginia would never have ratified Pennsylvania's constitutional provisions for explicit personal protection with firearms. But both states agreed on the militia purpose. Hence, the federal Constitution protected the militia purpose, on which the states agreed, and the state constitutions protected variously personal rights upon which the states disagreed.

Heller, of course, made hash of that historical context. That is the law we have now. It is accurately understood as a politicized decision. The wisest way to understand it would be to let the states deal with it individually, according to their own politics, and thus keep the states in accord with the actual history.

[Randal]

Soon enough, Heller will be declared Egregiously Wrong.

[Krayt]

Virginia would never have ratified Pennsylvania's constitutional provisions for explicit personal protection with firearms. But both states agreed on the militia purpose. Hence, the federal Constitution protected the militia purpose, on which the states agreed, and the state constitutions protected variously personal rights upon which the states disagreed.

I'm no gun rights historian, but if what you say is true, neither state would find federal regulation to cram one state's view onto the nation on guns (more restrictive) over each state regulating locally, any more than they'd be peachy with one state's religion getting a national official foothold.

In short, stopping the feds from forcing another state's unsavory gun laws, permissive or restrictive, onto states with different ideas.

[Stephen Lathrop]

Krayt — You seem to have grasped the argument. Perhaps you find the corollary as easy to understand: the only gun right protected by the 2A is the militia right. Other rights exist, but are protected by state constitutions, or to the extent they find federal protection, by the body of the U.S, Constitution.

But also, that is not current law. That is the original meaning. Heller pretended fidelity to original meaning, but announced a different and much broader federal protection for gun rights. Heller and its descendants are current gun law in the U.S. The only people that ought to trouble are folks who insist on original meaning, but also on maximal gun rights federally protected.

[dwb68]

Again no. You know better, too.

[ReaderY]

My comment doesn’t depend on this interpretation. I have long argued that the first clause describes a states’ right to a militia, while the second clause describes an individual right to keep and bear arms. As I see it, it’s both/and, not either/or.

[Bruce Hayden]

Maybe, as long as the Militia Clause doesn’t swallow the individual RTKBA, as some here continue to believe.

[MaddogEngineer]

Again, the militia is much more than the National Guard. Historically it is the armed citizenry, with the presumption that the citizenry is armed, which is the core right being recognized and protected by the Second.

Necessary, should any government become tyrannical and oppressive. Frankly, I'm surprised that the pro-immigrant anti-administration side has not made any historical appeals to the enforcement of federal fugitive slave laws in the 1850's, which were very unpopular in the North and often actively sabotaged. But I guess that would require acknowledging the technical legal legitimacy of current immigration law, and that the immigrants being deported are actually in the country illegally.

[ReaderY]

I don’t disagree. But nonetheless, the National Guard is part of a state’s militia.

[David Nieporent]

The word "state" in the Second Amendment refers to nation states, not the state of (e.g.) Maryland.

[ReaderY]

The Supreme Court Court said in Roe that the Constitution uses the word “person” in a consistent way throughout. In Verduho-Irquidez, it said the phrase “the people” has a consistent meaning throughout. Why should the word “state” not do so?

After all, the United States as a whole is a federal system with divided sovereignty, not a nation-state with unitary sovereignty. Why would people bother to adopt a Constitutional amendment that applies to a form of government other than the United States’? In the United States legal sytem and form of government, state means state.

[David Nieporent]

The Supreme Court Court said in Roe that the Constitution uses the word “person” in a consistent way throughout.

No, it didn't. The only thing the Supreme Court said in Roe about the word "person" in the Constitution was that it consistently didn't refer to the unborn.

Why would people bother to adopt a Constitutional amendment that applies to a form of government other than the United States’

Those are all words, and they're used in a grammatical way, but their content is nonsensical and unrelated to anything I said. The amendment applies to the United States.

[ReaderY]

You ignore the fact that in this country, militias are state militias unless lawfully called into federal service. That’s why it’s such a natural reading to give “state” the same meaning here that it has in every single other place in the constitution that the word is used. Saying that the word “state” in a clause of the American Constitution about militias doesn’t refer to American states when the same word used everywhere else in the constitution does, seems a very strained reading, the sort that seems reasonable only to people who want to reach a pre-determined result very, very badly.

[David Nieporent]

Setting aside that the 2nd amendment was drafted at a different time by different people and there's therefore no reason their respective authors must have used a word the same way as each other, your premise itself is mistaken.

Article I, Section 9, Paragraph 8 uses the word "state" differently. So does Article II, Section 3. So does Article III, Section 2, Paragraph 1. So does the 11th amendment.

[Armchair]

“Normally, FPS would be able to rely on the [PPB] to assist with large scale law enforcement operations related to federal facilities in Portland. FPS has been informed by PPB, however, that they will only respond to ‘life/safety’ situations, but not anything immigration related.” Id. ¶ 15. But when FPS called PPB multiple
times on September 9 to request assistance with a woman who was being physically 5 Declaration of Franz Schoening, City of Portland, Commander, Specialized Resources Division (Schoening Decl.). 15 25-6268 assaulted by a group of 12 to 13 protesters outside the ICE facility, PPB would not intervene or assist. Id. Eventually, FPS permitted the woman onto federal property for her safety and later pushed back protesters so that the woman could escape from the protesters attempting to follow her. Id. “In June 2025, PPB Police Chief Bob Day spoke publicly about avoiding any
actions that might show ‘perceived or actual support’ for immigration agents” after PPB officers cleared a blockade of the ICE driveway to let an empty transport van pass. Wamsley Decl. ¶ 25. In emails summarizing these incidents, PPB officers report that no officers are available to respond to disturbances at the ICE facility." Hughes Decl. Ex. 15 (September 16 email explaining PPB has “no officers to go or call” to respond to disturbance at ICE facility)"

That's starting to sound like a violation of the 14th amendment, where Portland PD is denying equal protection to federal agents and employees.

[Martinned]

Federal agents and employees, in their official capacities, don't have constitutional rights.

[Armchair]

Of course they do. Why wouldn't they?

[Sarcastr0]

You got a case on point?

[MaddogEngineer]

You think citizens give up their individual civil rights when acting as agents of the government? Really?

It was weird that California was bragging about their new law against police wearing masks on duty without authorization, which they purported also applied to federal agents in the state. I guess doxxing federal agents is okay, because even when off duty they are still federal agents after all.

[Sarcastr0]

The key here is ‘in their official capacities.’

You sure wrecked that strawman.

[MaddogEngineer]

So if someone doxxes a federal agent in their official capacity, that's okay?

The left likes to remind us that new understanding of law are always possible, that the law is always evolving. If we can understand equal protection to guarantee a right to marriage, then it might also apply even to federal agents acting in their official capacity. Section 1983 for all!

[John 4]

The scatterbrained cultist mind at work is a curious sight.

[Armchair]

I mean, Sarcastr0's version here leads to all types of fun interpretations...

US Troops overseas are basically "always" in their official capacity. Sarcastr0 would validate denying their right to vote. "They don't have that right" he would say. Or those pesky "Cruel or unusual punishment" amendments? As long as they are in their "official capacity"...you could torture as much as you like.

[Sarcastr0]

Yes, tell us all more about what I would say.

[Armchair]

Why don't you tell us what you would say then.

In your opinion, do federal employees have protection under the 14th Amendment and the related laws, including the right to equal protection under the law? Yes or no?

Or you can avoid the question, as you are so apt to do. So, we can only assume what you will say.

I'm giving you the direct chance to state your opinion on the matter. Will you take it?

[David Nieporent]

You think citizens give up their individual civil rights when acting as agents of the government? Really?

Yes, of course. See, e.g., Garcetti v. Ceballos.

I guess doxxing federal agents is okay, because even when off duty they are still federal agents after all.

Were you under the impression that "doxing" was somehow not okay for non-government employees?

[MaddogEngineer]

I guess that's why I originally said that federal agents do not give up their civil rights just because they are acting in an official capacity. California did not pass a law purporting to govern government workers--though maybe there is also a law such masking. Again, the law Newsom was boasting about he hoped to use against federal agents. So I remain confused why you would try to change the subject to non-government employees. Since I wasn't talking about them.

[David Nieporent]

So I remain confused why you would try to change the subject to non-government employees. Since I wasn't talking about them.

Um, you (sarcastically) suggested that doxing federal agents was okay because they're federal agents even while off duty. And I'm saying that doxing federal agents was okay because doxing people is okay, and federal agents are people.

[Armchair]

"because doxing people is okay,"

Eh... Morally it's not "okay". And under various state laws, it's also not OK. Oregon's House Bill 3047 made it a civil offense in 2021. It's currently under consideration for being a criminal offense in Oregon (as it is in nearby California).

So, it's not "okay".

[David Nieporent]

I don't believe such laws are generally constitutional.

[Armchair]

"I don't believe such laws are generally constitutional."

This ought to be good?

Why not? "Doxxing" is generally considered to be the release of someone's personal information (often home address), with the intent to harass, intimidate, or threaten the individual. The intent of course, is important. And harassment, intimidation, stalking, and threats are generally considered exceptions to the 1st amendment.

Of course, just releasing the information in, for example, the old White Pages, isn't illegal. It's the intent...ie, posting the home addresses of ICE workers with a note "These are the ICE workers and their home address." Generally speaking, there's no good public purpose for posting such information. But when those workers get "visits" from people looking in their windows, stalking them, it leads to intimidation and implied threats. The doxxing is designed to do this.

But please tell us, do you not consider laws against intimidation or harassment constitutional?

[Armchair]

"You think citizens give up their individual civil rights when acting as agents of the government? Really?
David: "Yes, of course"

Ah, our paralegal-in-chief makes a firm stand here. We of course were talking about the 14th Amendment. And David has responded with a case that has a limited 1st amendment ruling. Coming down on the side that Federal employees have "No" civil rights, period, at all, across the board, using a limited 1st amendment ruling.

Apart from just being wrong (See Civil Service Reform Act of 1978, Title VII of the Civil Rights Act, among others), let's really imagine what this would mean. Members of Congress are, of course, federal employees. But under Mr. Nieporent's view, they have "no" civil rights, no Constitutional protections, so long as they are working "in their official capacity". So, there would be no legal reason that Trump couldn't simply order the FBI to enter the Capitol, detain Senator Schumer at gun point, and throw him into a deep dark cell. The 5th amendment...just doesn't apply to Senator Schumer, according to Mr. Nieporent.

I think that's nuts...but I'm just an Armchair Lawyer.

[MaddogEngineer]

Agree, as I've made that observation in other places.

[Estragon]

The appetite around here for domestic military deployment on the basis of pretextual bullshit is apparently bottomless. But it has become increasingly clear to me over the last few months that the truth or falsity of these claims is really not critical to those who would support such things: the desired end result is paramount— the justifications need not be objectively justifiable nor even in fact plausible.

Obviously this is just the beginning; I expect this tactic to be deployed going forward in other locations, particularly when we are attempting to vote next year. I urge each and every one of you— particularly those cheering these developments— to think about what the future holds as we begin down this path.

For our own part, I expect Portlanders to continue to confront those who would use our fair city to advance their authoritarian political agenda with humor and grace. Frogs can multiply quickly, as we have already seen.

To the Trumpists: be wary of those that you would make martyrs. For in those martyrs, you create the leaders who will eventually become your undoing. Onward, Rose City.

[loki13]

Authoritarianism is a helluva drug, I guess. Honestly, I don't see the appeal.

[MaddogEngineer]

LOL that thing you claim is happening is not happening, but I will be damn proud when we continue confronting our authoritarian enemies. Confronting.

[Estragon]

“confronting our authoritarian enemies”

Careful now bub— that’s antifa talk.

[Armchair]

"pretextual bullshit"

Did you read the full opinion, and all the issues at hand? What in the assaults on ICE personnel and facilities is "pretextual" in your opinion?

[Estragon]

I did indeed read Judge Immergut’s opinion, and I will just note here that DOJ did not dispute any of the factual findings she made. Which makes sense, given the reality on the ground here today. “Warzone” “burning” “overrun by antifa” are intentionally inflammatory and untrue, and are offered as bullshit pretexts to effectuate the goal that everyone from Steven Miller on down to you wanted to begin with: deployment of the guard in our city and others in the future. On some level I guess my question is: why do you bother with these tortured justifications? I get why DOJ attempts it and conservative judges proving their bona fides do it, but wouldn’t it just be easier for someone like you to just say you want the guard deployed to own the libs?

It is worse than useless to argue with you people about if up is down and if the sky is blue. I am reminded of the outset of this, when Michael P told tales of his work colleague who wakes up every morning to plumes of smoke rising over downtown from antifa riots. The veracity of that isn’t actually important— in that its untruthfulness doesn’t affect your and his desire to see the guard deployed regardless. One might even call such claims “directionally true” as Scott Adams memorably did about the Haitians eating pets thing in Springfield. I seem to remember you and others frantically posting copy pasta about traditional Haitian culinary practices in some desperate attempt to justify an obvious falsehood. But, again, why bother? It was directionally true enough— for you. This goes back to the piece I posted the other day about symbolic thinking.

I know that you’ll dismiss this out of hand on sourcing or some other grounds, but people in the white house have admitted what’s really going on: it’s revenge for 2020. If guard deployments are justified on the basis of things that happened years ago, we are truly through the funhouse mirror:

“It was just the poster city for the problem in 2020,” said a person close to the administration, granted anonymity to speak candidly.
“You get the sanctuary [city] element, you get no National Guard called in by the state, much less the president,” the person said, suggesting the president won’t be restrained this time with the military. “There’s a lot of factors that make Portland a useful analytical point.”

https://www.politico.com/news/2025/09/27/donald-trump-portland-military-protest-00583423

Got that? A useful analytical point. Propaganda. Which is why Fox News uses 5 year old stale footage, why the Oregon GOP uses photos from decades ago on another continent.

Believe what you want. But don’t kid yourself about what is happening here.

[Armchair]

Since the opinion as written above was not written by Immergut, but by Bade and Nelson, I can only assume you did NOT read the opinion.

Read the opinion, as linked to in the OP. Which assault on ICE facilities and personnel do you consider "pretextual" as written in the opinion above?

[Estragon]

I could explain to you how factual records are developed but as I said above: that would be worse than useless. I do find it interesting you talk about Nelson, given what he wrote. Maybe you didn’t read too carefully?

You have proven my point more elegantly than I ever could. I take small solace in the idea that perhaps you learned something about Haitian culture during last summer’s rather shameful performance. I am always in favor of you people expanding your horizons a bit. Ta ta for now!

[Armchair]

So, once again, you've failed to indicate any of the assaults on the record here in the opinion that are "pretextual".

[Estragon]

And you have, in turn, studiously avoided engaging with anything I’ve said. Here is a perfect example of bullshit pretextual justification, from today:

“I looked at Portland over the weekend. The place is burning down, just burning down […] maybe that influenced the court.”

Now, I could do things like point out the complete lack of fires over the weekend (or today). I could point you to webcams of downtown, or the ICE facility. I could link you to the X account of Portland Fire and Rescue. You could even take my word for it, because I live here.

But that would be useless, as you are serially falling all over yourself to demonstrate here today. I imagine that deep down you view this kind of bullshit fake pretext as justified, in the same way that you viewed stories about Haitians eating cats and dogs as possibly false but justified. It’s like JD said himself:

“If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that's what I'm going to do.”

They are telling you to your face that they are lying to you. You are untroubled, because you view the end goal as desirable. To some degree, the more outlandish the lie, the more you approve.

There is a whole body of literature on symbolic thinking that I doubt you would be willing to engage with, but let’s just say that a lot of it rings true in interacting with people like, well, like you.

[Armchair]

Once again....nothing from the opinion above. Every time the question is asked, you divert elsewhere.

[Estragon]

I actually made two comments referencing your opinion. I guess you don’t read so good, as was evident from your reference to Nelson. Again, a complete waste of time with you, as always.

[Armchair]

"I actually made two comments referencing your opinion."

Which was? Which events referenced in the opinion did you say were "pretextual". Be specific.

[Estragon]