9th Circuit Vacates Ruling Allowing Trump to Deploy the National Guard to Portland
So for now Trump cannot send in the National Guard.
The 9th Circuit Court of Appeals will rehear the Trump administration’s appeal to deploy and federalize the National Guard to Portland, OR.
The “majority of nonrecused active judges” voted to rehear the case en banc.
En banc requires the approval of a majority of the judges of the 9th Circuit. In this case, the panel will consist of eleven judges.
Last week, a three-judge panel froze a lower court order that stopped President Donald Trump from sending the National Guard to Portland.
U.S. District Judge Karin Immergut placed two restraining orders on Trump: no federalization of the Oregon National Guard & sending in the Oregon National Guard, and no sending in the California National Guard.
The 9th Circuit already lifted Immergut’s order restraining Trump from federalizing the Oregon National Guard.
Judges Ryan Nelson and Bridget Bade found “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.’”
Therefore, they believe Trump will “likely succeed on the merits of their appeal.”
The other judge and Oregon asked the court for a review en banc.
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Comments
Its not like the laws in question are ambiguous…
It actually is. It says the president can only do it if he can’t enforce the laws using the regular armed forces, but it does NOT say “if he determines that he can’t…”. So it depends not on his determination but on the facts, and therefore it’s justiciable.
But the 9th circuit has ruled that the president’s determination, while justiciable, must be given extreme deference. The panel found for Trump because although the district court judge said she was giving his determination extreme deference, she clearly didn’t do so. Again, we have the court looking at the facts themselves, not at what someone said they are.
Now the en banc panel must examine the same question. Did the district court give the president’s determination the extreme defrerence to which it’s entitled, or did she only say she was doing that while in fact doing the opposite?
It IS an interesting question, to me anyhow.
“…So it depends not on his determination but on the facts, and therefore it’s justiciable.”
So while it’s justiciable, does the court have the authority to substitute its judgement for his?
Could the Court have over-ruled President Kennedy in Alabama
when he issued Executive Order 11111, which federalized the Alabama National Guard for the implementation of Brown at University of Alabama?
What about at Kent State University in 1970 where four students were killed by the Guard?
The question is not where the Guard should have been deployed in these cases but whether the Court could have made their own assessment of the situation and said, “No need for The National Guard.”
in 1963
BS
We get that you’re 100% behind rule by judges, but this is ridiculous.
Hodge is arguing against rule by the courts. I don’t know the name of the rhetorical ploy he is using, but I use the same ploy myself.
BTW — the Ohio National Guard was ordered to Kent State by the governor of Ohio.
and the dem mayor called the gov ( gop) to get the guard in the first place
The law doesn’t say regular armed forces, it says regular forces. Be that as it may, Oregon is the only state without any active military forces within its borders.
The law is clearly in the executives side. He is the only one who gets to make the determination.
No, that is not the law. The law is, as the appeals court said, that his determination is subject to judicial review, but is entitled to extreme deference. So he wins unless it’s obvious that he’s misrepresenting the facts.
In this case that is not obvious, so he won. Now the en banc panel will reconsider whether it’s obvious that he’s wrong, and if it’s honest it’ll reach the same conclusion.
He wasn’t relying on the same statute. He invoked the Insurrection Act of 1807, codified as 10 USC 252, which starts “Whenever the President considers that…”
Trump is relying on 10 USC 12406, which does not have that language.
That’s more or less what justiciable means. But the 9th circuit in Trump v Newsom had just said that the court must give the president’s determination extreme deference, so it can only override it if it’s obvious that he misrepresented the facts. And in this case that’s very far from obvious, so Trump wins.
It actually isn’t
Agreed. Text is:
“ Whenever—
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.“
While one can bring frivolous lawsuits and shop around for a sympathetic judge – a delay tactic at best – the language is clear and that’s the galling thing to those of us on the sidelines.
The language is clear. It says “whenever the facts are so”, not “whenever the president claims the facts are so”. That automatically means his determination of the facts is reviewable by a court. But the 9th circuit said the standard of review must be extremely deferential, so he wins unless it’s obvious that he’s lying, which it clearly isn’t. One need only look at the facts to see that, whether he’s right or wrong, he’s not obviously wrong, and that’s enough for him to win.
If Congress had wanted the courts to have a role in these determinations, it would have spelled it out – “The POTUS may make this determination and do this and that with the advice and consent of an appropriate court.”
The courts have authority to rule on the constitutionality of the law itself. They can tell POTUS when he is exceeding his authority under the law.* They cannot find a role for themselves in the exercise of judgment that belongs to the POTUS when Congress has not explicitly given them an oversight role. The POTUS is elected to exercise his judgment when executing the law. The Constitution vests him with the executive power. If there’s a law that says he can federalize the NG and/or that he can deploy them under certain conditions, and that if and when those conditions are met is left to his judgment (the statutes express general rules, Congress purposefully leaving much to the POTUS’ discretion), and the courts are not expressly made a part of the decision-making process, then the courts have no authority to replace the judgment of the president with their own.
*This is not occurring in this situation. The court does not say POTUS doesn’t have the authority to federalize and deploy the NG, it’s saying that the conditions under which he can do so have not yet been met. This usurps the executive’s decision-making authority concerning when to execute a law when the law does not specify that he may not do these things under current conditions. The POTUS has exercised his judgment, end of story. If he is to be held responsible by anyone for exercising poor judgment, it’s the public that has this authority. If he has committed a high crime or misdemeanor, then the remedy is impeachment and expulsion from office.
That’s not how it works. Congress is granting the authority. If it wanted to shut the courts out, and give the president unreviewable authority to determine the facts, it would have spelled it out: “If the president determines that the facts are so…”. But it didn’t do that. It didn’t give the president the authority to determine anything. It simply said “If the facts are so…” and that means it’s up to a court to decide whether the facts are indeed so. The president initially declares that they are and acts accordingly, and anyone who disagrees is free to challenge it.
But, at least in the 9th circuit and probably everywhere, the standard of review must be extremely deferential. The president is in the best position to determine the facts, so a court should only override him when it’s obvious that he’s wrong. He should get the benefit of any doubt.
Here the district court explicitly acknowledged that standard, and claimed to be applying it, but it obviously didn’t. So it’s Trump who’s going into court to challenge the district court’s determination that he’s “obviously” wrong. And the appeals panel agreed that the district court lied, and he’s not obviously wrong. They need not decide whether he’s right, just whether he’s obviously wrong, and he isn’t. Now the en banc panel gets to address the same question, and if it’s honest it will give the same answer.
Shut up you pretentious twit.
In order to know that you’re not able to enforce the law through regular channels you must DETERMINE that this is so.
And none of your Democrat prattle can change that.
Stupid perpetual leftist semantic games.
Go away. Find some leftist hellhole where your drool filled maunderings will be hailed as genius and stain this website no more.
Shut up you demon from Hell. Obviously the president must first determine the facts to his own satisfaction. But unless the statute otherwise provides — and it doesn’t — that determination is subject to judicial review. If Congress wanted it not to be, it would have made the authority depend on his determination rather than on the facts themselves.
Well Milhouse, one giant gapping hole in your reasoning and the 9th circuit’s is the separation of powers. It is decidedly not within the province of the federal courts to dictate to the president when emergency circumstances necessitate the federalization of the national guard. The Supreme Court resolved this long ago when it concluded that “the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons”. Martin v Mott, 25 US 19. 30 (1827). “[A]ll other persons” would include the judges in the 9th circuit who want to cosplay as the president.
A decision from 1827, about a draft dodger in the War of 1812, examining a completely different statute, is not relevant to an examination of this statute 200 years later.
The separation of powers is precisely the issue here. When Congress says “if the facts are so”, then it is for the courts to decide whether the facts are indeed so. The president gets deference, even extreme deference, but his word is not determinative. He can’t just assert that something is so, and everyone must accept that it is so even if they can see that it isn’t. If Congress wants to give him that sort of control it needs to say so, and in this case it didn’t.
They did when they wrote a statute that entrusts the President with the authority to make the determination of when “exigencies” exist requiring the federalization of the guard. The Constitution had a little to say by making separate, coordinate branches government, one of which includes the President. That would be the guy who is vested with all executive authority and, not incidentally, the Command in Chief. of the guard when called into service. And the S.Ct said it little to say when it recognized that the judicial branch lacks the competence to render judgement upon such executive matters of national security.
The 9th circuit, in an excess of judicial arrogance, has overlooked all of the above. But so do too many federal judges these days.
Sounds like you are argung that a 200 year old decision is partailly invalid solely due to its age. That doesn’t bode well for your respect for a docume t that predated the precedent by another 50 years. I assume you misspoke
Cool. Now do Marbury–that decision is pretty old, and has been bastardized for plenty of unrelated laws.
That’s the whole point. THEY DIDN’T WRITE THAT!!!
How are you not understanding this? They could easily have entrusted the president with that authority; but they didn’t. The statute gives the president no authority to make that determination. I don’t understand where you’re getting the idea that it does.
Had the statute said “If the president says the facts are so”, then there would have been no case. The case exists only because the statute doesn’t say that.
The constitution says nothing about this, and neither has the supreme court. This is entirely about interpreting this one statute and no other.
No. I’m arguing that a 200-year-old decision in completely different circumstances and about a completely different statute is of limited value in interpreting this statute in the current circumstances.
Marbury stands for the same thing it always stood for. That the constitution vests the judicial power in the federal courts, and that if Congress makes a law that the constitution forbids it to make, then it is the courts’ duty to declare that law invalid. That is all. That still stands, and no one disputes it.
How are you not understanding the role of the courts in our constitutional structure of separation of powers? The S.Ct. understood. I think you should be guided by the Constitution and binding precedent, not the 9th circuit Milhouse.
But many fail to understand separation of powers. The lower courts had difficulty with that in the presidential immunity case and more recently in the Alien Enemies Act litigation. Partly its gross judicial bias unfitting of judges, partly just judicial arrogance.
And Milhouse, with respect to your comments on Marbury, you should understand that separation of powers is integral and informs the Court’s analysis of the principle of judicial review. And the Court has recognized that there are some things constitutionally ill suited for judicial oversight. The present case being one of them.
I understand that exactly. It seems that you don’t.
What are you talking about now? The Supreme Court has not yet said anything about this matter.
How is the constitution relevant here? This is a matter of statutory interpretation, not the constitution. And what binding precedent are you talking about? In the 9th circuit, it’s the 9th circuit’s precedents that are binding. And that precedent says clearly that this is justiciable, as the text of the statute implies.
Concise, you were the one who made the assertion that Congress “wrote a statute that entrusts the President with the authority to make the determination”. Do you now concede that that is not true? Or are you still insisting on it? Have you bothered to read the statute? Did you not notice that the words you put so much store by, which Congress could easily have written, are not there?
Compare 10 USC § 12406, the statute on which Trump is relying, with § 252, which is the one Kennedy used in Alabama. Do you not immediately see the crucial different in language? § 252 says exactly what you want. But § 12406 doesn’t.
If you’re going to cut and paste excerpts of my comments, Milhouse, do try not to mangle their meaning.
I, of course, did not literally mean the S.Ct. decided the present matter. I thought that was more than obvious from the context of my comments. I meant they decided governing principles in Marbury and a controlling rule in Martin. (And as for Marbury, I’m sure you still misunderstand separation of powers as explained in that case). And the constitution is relevant as to the separation of powers and division of authority in our constitutional system. The statute clearly and unequivocally grants authority to the president, the head of the executive brand and commander in chief. His decision is binding. The federal courts have NO business second guessing the commander in chief in this executive national security decision.
maybe its time we admit there is a civil war going on in the usa
There is a cultural war going on.
The left already knows this.
It’s about time we, on the right, recognize it as such….
Politics is downstream of culture. Just what is “the culture” of the US these days? I would say that there are now several sub-cultures that function separately with no intention of being part of the whole…. Black subculture and ..of course…. the biggie….Islam. The Left can’t grasp that their best buds in the culture war are using them until time to reduce them to dhimmitude…. oh… less than that as dhimmi infers “People of the Book”.
What’s cute is how the Portland Police dismantled the Antifa camp in front the the ICE facility in preparation for the en banc hearing. Things will stay calm until this is decided and then PPD will fade away again and the protestors/antifa will be worse than ever, regardless of how it’s decided.
One thing I am hoping is that those on the right who have the view “I support the police no matter what” notice what is going on.
Police follow orders. If we end up going into a hot civil war, they will – if given the order – gun you down without a second thought. Or, stand by while your stores, homes, and vehicles are burned.
I don’t hate the police. But I also don’t trust them any farther than I can throw a locomotive. They wanted Frazier vs Cupp; now they can live with it. If it carries a badge, it’s lying.
This was my observation of police during my time in a cop shop. And I worked with a LE organization that’s considered one of the best. But there is no question that they cover their own asses first, respond to political situations as ordered, and consider the safety of the public last. They aren’t to be trusted. Yeah, yeah, there are good cops. But when push comes to shove, those cops will be fired for refusing to follow unlawful orders, so they’re of no help.
Agreed, I am not a fan of the police myself, I grew up in the 80s before camera and saw the police lie cheat and get away with murder. I saw the violence they got away with. Its better now but it is amazing how many police have massive ego’s and severe inferiority complexes.
A good friend that is a high ranking fireman claims that the people that become police are the guys that were picked on in high school. He told me a story about how he was arrested once because he refused to move the fire truck that was being used as a barrier blocking a 5 car pileup with fatalities. The words that were relayed from the fire chief to the chief of police would get me censored here……
And yet since they started wearing cameras they seem to be mostly behaving themselves. Either they always were, and the reputation they had was unearned, or the cameras made them change their ways.
Or you forgot to include all the times the cameras mysteriously went off in the dataset.
That’s why, as the appeals panel said, you have to look at the whole picture, not just at what the state presents to you. You have to give the president’s determination extreme deference, so if there’s any way to look at the facts and see them his way you have to do that. And the way he sees the facts is to look at what’s been happening in the long term, not just what’s happening this week. Exactly as you say, the calm this week doesn’t prove there’s no storm. And it’s up to the state to prove there’s no storm, not up to the president to prove there is.
I’m so old I remember how we all waited on tenterhooks after the attack on Pearl Harbor for the Hawaiian judges to decide whether or not the president was authorized to take any action.
1. His military response did not rely on any statute but on his inherent powers as commander in chief, so there was no question of law. He certainly didn’t rely on 10 USC 12406.
2. Some of his actions in response to that attack were indeed illegal and invalid, and should have been challenged earlier than they were. For instance, he illegally imposed martial law on the entire territory of Hawaii, and that regime illegally lasted for several years. Everything it did was invalid, and had to be retroactively overturned when the Supreme Court eventually decided that the president had no authority to do that.
Judges are becoming like weather forecasters and economists,..they can be consistently wrong and still keep their jobs
Huh. I have it on good authority that because of the government shutdown the federal judiciary has severely curtailed staff and operations due to lack of funding.
Apparently, the ‘curtailed’ is not severely enough.
How about them Dodgers?
they lost last night, how about that?
Boy. If you worry that “settled science” changes a lot…
It’s now the Ninth Circuit Court of Executive Policy Review.
An astute and concise summation of the situation.
No, it is not. This is not a matter of executive policy, it’s a matter of law. Congress said the president can only act if the facts are so. It could have said “if he determines that it’s so”, and in many acts it did say that, but in this one it chose not to.
the black matriarchy runs the big blue cities …dont care if its chi or nyc…the founding philosophy is based on the black matriarchy …..
welfare…lawlessness >>no fathers>>>welfare etc
Well as an alum of PSU and decade long former Oregon resident, I have put a little money where the spice is.
1- sent defense money to one of the journalists (Andy Ngo’s crew) who had to pepper spray them during an attack. It is good to see that donations on that one were mostly in 100 multiples and they hit their goal in about 2 days. Haven’t seen update on the kangaroo court outcome yet.
2- I did a couple hundred dollar print run of 5×5 all weather stickers….. “Oregon hearts Ice… thank you”
#2 will be shipping to me in a day or two and then dispersing to feet on the ground in PDX.
Why is the judiciary so disinterested in getting criminals off the streets?
It isn’t. The court’s desires and policy interests have nothing to do with it. It’s entirely a question of what the law says, and whether the facts fit the law. At least that’s how it should be, and that’s how the appeals panel handled it. It explicitly said yes, this is subject to judicial review, but the president is not obviously wrong on the facts so we must defer to his judgment. If he were obviously wrong we would override him. Now the en banc panel must repeat that decision.
To paraphrase MLK — a power delayed is a power denied.
I’m waiting for how Judge Judy comes down on this.
I miss the glory days when all our country’s Executive Power was in Wapner’s hands.
This is why I have issues with Judges…
Court injunctions…
Biden 14 in 4 years
Obama 12 in 8 years
GW Bush 6 in 8 years
Clinton 12 in 8 years
Trump 170 in 4 years and 10 months
The Judiciary is filled with Leftist activist just like schools
Impeaching these corrupt Judges must be done immediately
His opponents would say that’s because he’s breaking the law more often than his predecessors did. But the fact that so many of these injunctions are being overturned means that’s not correct. He’s not breaking the law more often than his predecessors, he’s just being challenged more. Which is not necessarily an issue with the judges, but with the challengers.
It’s definitely an issue with the judges being overturned regularly.
I’d love to see JG’s list with the number of overturns also specified..
Then, realizing I could task a
slaveAI to do this for me, I got the following results from Grok:Data for the current Trump administration:
“CRS identified 34 nationwide injunctions issued January 20–June 27, 2025 (pre-CASA ruling), concentrated in federal funding (9), agency restructuring (5), and birthright citizenship (3). Immigration was minimal (2 cases). Post-CASA, no new universal injunctions have been issued.”
Currently 10/34 cases remain unchallenged — either moot, unappealed, settled with complaining party, or under (re)review due to the CASA ruling.
Of the 24 appealed cases:
4/24 affirmed in either full or narrowed scope.
20/24 overturned or reversed (~90%).
That would take forever and probably not get that far. However, what congress can do is limit the power of the inferior lower court judges or just change it back to it takes at least a 3 judge panel to interfere with the executive. (I believe that is how it used to be.)
Nothing below a panel from the court of appeals should be able to enjoin the actions of the Executive branch.
So for now Trump cannot send in the National Guard.
Not really. For now he might not want to simply defy the 9th Circus. But it’s not that he “cannot” but that he won’t. (Think back to all those discussions about “can” versus “may” that you had with your mother or your English teacher.)
SCOTUS is going to have to settle this. Eventually.
It’ll get fully argued before the 9th Circuit, the administration will likely lose, and then appeal to SCOTUS and win. That’s my prediction, anyway.
In the meantime, this will likely result in similar blocks everywhere else.
And its going to take awhile to resolve.
So, even if the D’s lose, as seems likely, they still get a win. The process itself is the win for them, getting a months (years) long block against what Trump is trying to do.
There’s a lot of speaking past each. IMO here’s how this works in practice.
1. Statute sets conditions.
2. POTUS determines whether those conditions are present.
3. POTUS choose to use the authority or not.
Simple. Now the second phase.
1. Those who claim a ‘harm’ can challenge it or not.
2. Any challenge is nearly doomed to fail given an honest application of the statute by the POTUS and a fair CT.
While the statute itself doesn’t grant exclusive non justiciable decision making to Executive this type of decision is part of the apex Executive powers and an honest CT isn’t gonna substitute its judgment due to the ‘extraordinary deference’ that must be granted to the Executive. Basically unless the Executive comes up with something that is absolutely and obviously untrue akin to ‘the sun rises in the West not the East’ then the decision of the Executive is gonna prevail. Once we get a single solid precedent here that will more/less forestall any future weak sauce challenges.
This is more or less it. The appeals court panel got it right. It rejected the President’s claim that his determination is not justiciable. The statute’s language clearly makes it justiciable. But in reviewing it, the courts must give it not just deference but extraordinary deference. So he can’t just outright lie, but if there’s a way to see the facts his way the courts must accept that.
The district court judge explicitly acknowledged this, and claimed that she had done so. But as the appeals court said, she clearly hadn’t. Her claim to have done so was a lie, and that lie doesn’t deserve any deference at all.
Now the en banc panel will rehear it, but there’s an important point that has not been mentioned here at all. The reason the en banc court will rehear it, and the panel didn’t object, is because the government acknowledged that it had made serious misrepresentations to the court. The government has apologized, but this revelation invalidated the appeals court’s overturning the district court. The whole basis for overturning it was the facts, as presented by the government; now that we know the government lied, which we do know because it admits it, the case has to be reheard.
Let’s hope that, even with the new and correct facts before it, the en banc panel will reach the same decision as the original panel, that the district court didn’t give enough deference. But the lies don’t help. If the facts really aren’t as the President said they were, then his determination should be overturned.
Let’s flip this upside-down and look at a hypothetical from the other side. Suppose under the Biden administration, an order to arrest a 80 year old grandmother in Texas and drag her to DC on the bogus 1512(c) Enron felony charge was resisted by the Texas police and the governor. Is there *any* doubt that the DC judges would find solidly for the administration when they sent (in this hypothetical case) select individuals from the MA National Guard to back up the FBI in making the arrest, and arresting anybody up to and including the governor who objected, dragging them to DC, holding them without bail, and running them through the same kangaroo court the rest of the J6 defendants were forced to endure?
If the Texas police and governor were actively resisting the arrest, the FBI would in the first instance send more agents, but if the president decided it was necessary to send the NG, he would need to invoke a statute that lets him do that.
Kennedy in Alabama invoked 10 USC § 252, which is worded very differently from 10 USC § 12406 on which Trump is relying. But the court would have to apply the standard prescribed by the statute.
As with all districts, DC has some judges who are not doing their job honestly, and that’s what appeals courts are for. As we saw in this case. The district court judge didn’t give the president’s determination the deference 9th circuit precedent says it deserves, so the appeals panel overturned. Except then it turned out the government lied to the court, so they need a redo with an en banc panel, this time telling the truth.