Transcription
Hi everyone, Harry here to talk about a really unusual, consequential, and pretty uh tempestuous onbunk vote in the Ninth Circuit on the question whether a stay should have been entered at the district court level. This is one of the three cases that are very quickly making their way up the upper echelons of the federal courts involving Trump's authority to federalize National Guard troops ostensibly to protect uh federal employees and facilities. So he has done this in Portland, he's done it in Chicago, and he has done it in Los Angeles. He did it in Los Angeles first actually. And Judge Brier, Steve Brier's brother, Chuck, entered an injunction saying you can't do that.
10 USC12406 says that there needs to be a rebellion or um there needs it needs to be the case that the regular law enforcement just can't handle the situation. That's not the case here. I under the statute it says whenever these things apply then you have this power and so I take that to mean I decide the judge decides I decide that uh neither of these uh are satisfied and um therefore enter a stay.
It goes to the Ninth Circuit and two members of a threeperson panel uh both Trump appointees uh remove that stay and say it wasn't he didn't give enough difference to the presidential determination but very murky and unclear like what they actually should have done because and just to to quickly invoke what's happening around the country you have this is really the quintessential Trump situation because there Whereas doctrine, you're supposed to give deference, but what's going on here is not to put too fine a point on it. Trump is lying in saying there's a rebellion there. You know, there's a definition to rebellion and it's reinforced by this statute that he's trying to use. It's supposed to be a really serious emergency. The other uh one of the three that it's not an issue is if we've been actually invaded and that happened in fact in the war of 1812. You we invoked it then but this is you know really extreme stuff on the ground and then the other you can't have any uh you can't do it with normal law enforcement. Again, the judges to have considered it on the ground say, "Give me a break." Uh just because there's a sporadic act sporadic acts of violence combined with basically peaceful demonstrations, that is not a rebellion. And likewise, uh sporadic acts of, you know, civil disobedience mainly done in response to the um you know, anti-immigration uh operations that they're doing so aggressively there. That doesn't mean that the that law enforcement can't handle it. You that's what that's what law enforcement's for. You make arrests, etc. All right.
But anyway, so the Ninth Circuit says we need uh you need to have more deference and they dissolved the stay. And that's the case that yesterday the entire Ninth Circuit voted. Should we um reconsider what those two Trump appointees did on the panel? dissolving the stay and therefore re-entering the stay. And there's subsidiary arguments not just about the merits but also about the other three planks of what you have to have to show a stay and and Brier and others saying there's no you know there it's no big deal to the no reparable injury to the United States and the like. All right.
So the majority of the Ninth Circuit, 29 active judges, so you need 15, did not vote to grant rehearing on bonk, but 11 dissented from and so already when you think about this, they desented from denial of rehearing on bonk to reconsider the panel's decision to dissolve the stay entered by um Brier. And you have a really fine disscent uh that all 10 of them joined by senior uh circuit judge Marsha Bersen who's been considered for her whole tenure as the kind of a anyway intellectual powerhouse of that court and she um writes a 43page descent that really makes several points and is probably the best statement uh to date about why it's not just dangerous but against our constitutional tradition to give Trump the kind of difference that you would have to give here in order to greenlight his asserted authority under 12406. So she really goes into kind of constitutional history and cultural national history and the very strong resistance of the country to military intrusion into civil affairs. This is, you know, from way back before the revolution when British troops were in just uh totally um uh making trouble and clubbing heads and the like and that it was really a strong part of the mindset of the founders and the you know the authority is generally granted to Congress by the Constitution to to have to deploy state militias and the like. So this uh provision that he's he's used and no has never been greenlighted before is very much for hyper emergencies. Got to move quickly that kind of thing. It's just not happening here.
Then second, Bersen has a very strong discussion and analysis of why the judiciary has to say what the law is. We're talking about, you know, not some kind of foreign policy foray based on classified information. We're talking about what is it? What do statutory terms mean? And that's just standard uh procedure for um courts, you federal courts. And by the way, the district courts uh take evidence and find facts and they're supposed to be deferred to unless they've made clear error. and the ninth circuit did nothing of the kind. Uh the seventh circuit, the case that's in KA um that in the Supreme Court by the way did they did defer. But anyway, so so she says um you know is there a rebellion and and uh you here's the dictionary and here's what rebellion says. Here's the facts. Here's the testimony where we heard everything's peaceful, etc. Therefore, no rebellion. That's also what I did in Portland. But a panel there uh just reversed her saying she substituted her own determination. She didn't she did what judges do. Likewise, are the is our troops unable not I'm sorry not troops normal law enforcement unable to control the situation as has happened very occasionally. I think maybe of Little Rock in the 50s when the state was so hostile to federal authorities. you. It was hard otherwise to get um the the four young students whom the court had ordered to uh attend the previously segregated schools. That was an occasion where it looked like you needed that sort of extra oomph in the National Guard. Here, you know, there are in Los Angeles of late where, by the way, there are 250 instead of 1,400 as there were National Guard. It's not a big deal. If somebody throws a rock, they shouldn't do it. They should be arrested, but that's what uh the all the federal agents are there to do. Not to mention uh state police and the like. And and so there's no showing that you um actually need to um this extra emergency authority. I mean, basically, you know, all the judges on the ground said, you know, what are you talking about? I can defer to the president, but uh there's no there's no rebellion. There's no failure to be able to execute the laws and the like. All right.
So, Bersen uh then has the very strong claim about why this is really for the judiciary to do. All this is basically written for the Supreme Court with and maybe even sadly the progressive judges on the court if they wind up dissenting, you know, that they would have this as a as a go-to. But, uh, that would mean we're already in a world of hurt because, you know, we are right now with baited breath waiting for the court to rule in Illinois on a shadow docket situation that raises basically just this question. How much difference does Trump get? and in particular, do you let him uh you know claim and execute emergency powers and he'd be off to the races and all kinds of things based on lies based on falsehoods. There isn't a rebellion and there isn't a failure of regular law enforcement authority. So that that's um you know she goes through this is this is for the judiciary to to um consider even this highly differential standard that immer said she'd apply. No generally she says and she has whole you know reams of law. This is just uh executive terminations are just subject to judicial review. That's a judicial function entrusted to the courts and the law, you know, dating back to Marberry versus Madison uh and up to uh Lope the Loper Bright case versus Reando from just last term. So, you know, this is for us.
And then finally the consequences you know the big section in this in this um 43page descent that 10 join the real consequences to the country of letting something like this happen and how we would be as indeed I think we would be well down the road to autocratic rule and you know the power of the executive to do all sorts of what would otherwise be lawless conduct and should be here. And I've raised what I think is the most um worrisome spectre of whether he could use these emergency powers to just cause mischief with the election and try to do undercover of bad law what he what he tried to do under illegally in uh in the 2020 um election. So this is big stuff. um 11 judges of the Ninth Circuit dissenting from a denial of rehearing on Bon for a stay odd and uh stuff that shows that this is big stuff and it's all of a piece indeed.
The Portland case is also in the Ninth Circuit. There's some suggestion that some of the judges on the Ninth Circuit like those facts a lot better and are maybe waiting for that to to have a different vote. But then we have the Illinois case which is teed up for decision in the Supreme Court right now and you know could come any time. One of their shadow docket surprises maybe the worst surprise of all. One the worst um decision of all. Not such a surprise sad to say under the shadow docket. a decision saying Trump has discretion that has to be um the the courts have to um defer to even if everybody knows and everybody does know that their account of the facts that the whole thing is based on is just bogus. That's where we are and it's a really really important crossroads. So, watch very closely for the Supreme Court decision and certainly I'll be here to talk about it when it happens. Until then, talk to you later. Thanks for tuning in. If you enjoyed this video and other Talking Feds content, please take a second to like and subscribe. Talk to you later.