Up Go the Stakes, Again

The question of National Guard deployments in blue cities will soon be decided by the Supreme Court. We probably won’t like the answer, but it’s not nearly the end of the story.

Photo courtesy of NPR

If there’s one question keeping legal observers and blue state governors and mayors up at night, it is this: Will the courts permit Trump to deploy National Guard troops to U.S. cities?

This question has been bouncing around in the courts ever since Trump federalized the National Guard and sent it into California in response to ICE protests in Los Angeles. While the Ninth Circuit greenlit the original federalization and deployment, a federal judge ultimately ruled, after a three-day trial, that the military had exceeded its authority under the Posse Comitatus Act. That’s the post-Civil War law that criminalizes the use of federal troops as local police.

Smarting from that setback, Trump shifted his attention to Washington D.C., where he used his expansive powers to deploy National Guard troops in a place where he wouldn’t be so limited: a federal district rather than a state. Troops have remained deployed there since.

Trump upped the stakes by attempting to send the National Guard into Portland and Chicago. These weren’t just troops from those states. He actually attempted to deploy the California and the Texas National Guard to Oregon and Illinois against the express will of Governors Tina Kotek and JB Pritzker.

Then the lawsuits picked up in earnest, and the stakes went sky high. Let’s review what happened and where things stand.

Two different district courts said no

Two different federal district court judges, Judge Karin Immergut in Portland and Judge April Perry in Chicago, blocked those moves by Trump. Both issued temporary stays on his federal troop deployments, noting that there were no active rebellions or inability by local authorities to control protests.

Judge Immergut’s first temporary restraining order (TRO) temporarily blocked Oregon National Guard troops from being deployed. The White House appealed from that TRO—a rare thing, since the order is already temporary and will be resolved one way or the other soon.

But on top of that, the White House tried going around her order by sending in the National Guard from California, where it was already federalized from a prior order, and from Texas with the help of a complicit Gov. Greg Abbott.

Judge Immergut was furious. The reasoning behind her first order clearly still applied, whether the guard was from Oregon or another state. So to make things crystal clear, she issued a second TRO against deployment of the National Guard from any state. Then, for reasons unclear to observers, the White House pursued only its appeal from the first TRO and did not appeal her second TRO. This procedural error, if it was in fact one, winds up mattering a lot for reasons I’ll explain.

It’s important to note that both Judge Immergut and Judge Perry established a factual record that the government had failed to produce any evidence of a current rebellion or inability of federal authorities such as ICE to execute federal law. It’s also important that both noted that the false characterizations of the situation on the ground—essentially that Portland was burning to the ground and was “war ravaged” and that Chicago was a criminal hellscape where ICE agents were being savagely attacked—bore no resemblance to the truth.

Why does this matter? Appellate courts are supposed to accept the factual records of the lower courts as they receive them and focus only on the legal questions before them. They aren’t supposed to go back and review the facts unless there were clear errors in the lower court’s factual findings.

There was no way the Trump White House was going to let these rulings stand. So they appealed, both to the Ninth Circuit which oversees Portland and to the Seventh Circuit which oversees Chicago.

The appellate courts are a mixed bag

In Chicago, a three-judge panel, including one Trump and one George W. Bush appointee, unanimously found Trump lacked authority to convert mere protests into a rebellion through unsupported claims, all to justify troop deployment under Title 10. That was a nice win for the forces of democracy, especially given the conservative lean of the panel.

The result was not so great in Portland. A panel of three judges—two Trump appointees and one Clinton appointee—ruled the opposite way. No bueno. The majority decided to lift the first TRO issued by Judge Karin Immergut, ruling that Trump’s deployment “reflects a ‘colorable assessment of the facts and law within a range of honest judgment.’”

[Narrator: It was the first time the words “honest judgment” have ever been applied to Trump.]

But here’s the rather funny thing: The judges admitted they lacked authority to do anything about the second TRO Judge Immergut had issued, which as you recall was in response to the White House’s attempts to circumvent her ruling by sending in other states’ National Guard. Why? Because the DOJ never appealed from it! Whoopsie.

That left Portland in a weird place, which is admittedly on brand. There was still a TRO preventing Trump from sending in any National Guard, but the court’s reasoning for lifting the first TRO would likely have applied to the second. All it would take is for the White House to file a motion to lift the second TRO based on the opinion just issued by the Trump-friendly panel, and in would go the National Guard.

Sure enough, the government filed just such a motion right after the Ninth Circuit panel’s written decision came down in its favor.

So will the National Guard be deployed to Portland? Not quite yet.

There’s a rule in the Ninth Circuit that allows not just a party but a judge from the original panel to request what’s known as en banc review. That usually means the entire circuit sitting in judgment of a case, but because the Ninth Circuit is so large, it instead involves 11 judges, including the Chief Judge, instead of just three.

And sure enough, the Clinton appointee from the panel, who had written a scathing dissent of the opinion by the Trump appointees, made just such a request yesterday.

The briefs are due by tomorrow at midnight, meaning they are on a hurry up schedule. It seems unlikely that Judge Immergut will disturb her second TRO until the question of whether the matter will be heard en banc is resolved. And if the Ninth Circuit decides to hear the case with 11 judges, she’s going to freeze the status quo until a decision comes down.

Meanwhile, the White House upped the stakes in Chicago by appealing from the Seventh Circuit’s opinion and asking the Supreme Court itself to step in.

SCOTUS and the emergency docket

Yesterday, the parties along with numerous amici curiae (“friends of the court”) submitted briefing on whether this case should be heard on an emergency basis by the Supreme Court.

So here’s the worry. Throughout the last nine months, the Supreme Court has permitted many of Trump’s policies to continue by simply lifting the preliminary holds by the lower courts. These decisions from the Supreme Court often appear as just a single line or paragraph dissolving an entire injunction.

This disturbing practice has become a way for the conservative majority to decide cases without actually having to hold a full hearing, while making hugely consequential decisions without having to show their work. It’s a cowardly, cynical and destructive way to go about the Court’s business.

Most recently, for example, the Supreme Court allowed the Trump White House to withhold billions in federal aid that was already appropriated by Congress, all without explaining the basis for its decision. That kind of silent head shaking by the Court has encouraged the White House to go extreme, knowing that even if the lower courts stop it, its friends on the Supreme Court can still greenlight its actions while the cases await trial.

In the case of the National Guard deployment to Chicago and other parts of Illinois, for example, the extremist majority could simply lift Judge April Perry’s TRO, again without explaining why. That would give Trump room to act in a legal gray zone.

If the Court doesn’t explain itself, no one will know whether the majority disagreed with Perry’s decision because of a technical question, such as legal standing of the parties, or whether it believes the entire question of whether the president can deploy federal troops is a political one that cannot be decided by the courts.

These cases do indeed have major implications. That they are being “decided” on the Court’s emergency docket—sometimes derided as the “shadow docket”—is particularly galling. After all, if a U.S. president can deploy the National Guard based on bogus claims, and the courts can’t or won’t do anything about it, that’s a big step toward a police state, and we may never learn the legal justification for it.

So, deep breath. I have an unhappy prediction. From where I sit, it seems fairly likely, given the Supreme Court’s prior consistent misuse of the emergency docket to weigh in on the side of the Trump White House, that the extremist majority will simply undo the lower court stay and allow the National Guard to be deployed in Chicago. It may ultimately do the same with Portland when that case reaches the Court, following what will likely be an en banc review by the Ninth Circuit.

I would like to be wrong. Delighted to be, in fact. But there have been few signals that the Court is willing to put real limits on this president.

So are we well and truly screwed?

This is bad, but we already know how to respond

So what will happen if SCOTUS allows Trump to move ahead with National Guard deployments in our major cities?

In some sense, we already know the answer, as well as how to suck the oxygen out of the military chest thumping.

While the Supreme Court may permit these National Guard deployments, this does not mean Trump has the right to use them as if they were a law enforcement force. The limits imposed by the Posse Comitatus Act still apply, as long as the forces are acting inside a state rather than a federal district or territory.

That means that if the National Guard begins acting like the police by arresting and detaining people, the White House could get knocked back by a civil lawsuit under the Posse Comitatus Act, just like what happened in California.

The military also understands this and is likely to be cautious not to exceed its authority or to sully its reputation within our cities. Indeed, a leaked internal National Guard study showed the military was concerned about how the local populace in places like D.C. was reacting to the presence of federal troops. So we know this is top of mind for the armed forces.

Protestors also appear to understand how to handle ICE without fanning the fascist flames Stephen Miller wants to see ignite a nationwide conflagration. Irony, ridicule and comedy, especially outside of ICE facilities, are diminishing the argument that the populace is somehow in open rebellion against federal authority. Non-violent protest is the best and likely the only way to prevent things from escalating further.

Remaining non-violent and on message will take discipline, especially in the face of open provocation by the Department of Homeland Security as it fires tear gas and other projectiles at unarmed protestors. But if we can assemble in 2,500 places with over seven million people in attendance for No Kings without violent incidents, then we have the capability to keep city-specific protests peaceful. We can achieve this even while our message remains clear: No fascist takeovers, no ICE in our communities, no troops on our streets.

All of this would be unnecessary if two of the six Republican appointees on the Supreme Court would see the danger clearly and refuse to hand the keys over to an increasingly unwell and disturbed madman and his cohort.

We should assume a bad decision is coming. Staying focused and preparing ourselves requires a clear-eyed assessment of the risks. And the risk of a thumbs up for Trump from this Supreme Court is uncomfortably high.

If and when the federal troops deploy, we should treat them as we do any unwanted federal force such as CBP or ICE. We document their actions everywhere. We pass local and state laws to limit their actions and constrain their options. We publicly share evidence of any overstepping of authority or abuse. And we sue to tie them down in the courts and ultimately expel them from our cities and states.

That is the game plan as I see it if and when the Supreme Court rules in favor of Trump, as it has before. The road ahead will not be easy. But we can make it work because we have already done so before in California.

And if we replicate that everywhere, their efforts will collapse under the weight of public opprobrium and the burdens of official incompetence and overreach.

We can, and we will, prevail.