In Trump v. United States, the conservative majority of the Supreme Court considered the proposition that granting Donald Trump unchecked presidential immunity opened the door to a president sending commando units to assassinate political rivals without repercussion and said, “yeah, we’re cool with that.” Seemingly taking vibe guidance from that opinion, a divided Ninth Circuit panel fronted by Judges Ryan D. Nelson and Bridget S. Bade (take a guess who appointed them!), shot down District Judge Karin Immergut’s temporary restraining order blocking the Trump administration from deploying National Guard troops — over the state’s objection — to perform law enforcement duty around the Portland ICE office where a handful of dancing inflatable animals gathered in protest.
The Ninth Circuit will inevitably hear the case en banc — the process is apparently already underway — but in the meantime, this decision becomes another collectible in the White House’s effort to string together step-wise court victories toward laying the legal groundwork for unilateral authoritarianism. That’s really what’s going on here. The administration is fully aware that they don’t need the National Guard to secure ICE from eight hippies. But they’re counting on judges like Nelson and Bade to write opinions establishing that Trump’s subjective assessment of “danger” justifies military deployment — precedent that will be ready and waiting when he wants troops at polling places or outside state capitols during vote certification.
Like the proverbial inflatable frog in the pot.
Judges Nelson and Bade are both Trump appointees who rose to their station through the MAGA patronage pipeline, a sort of judicial “Alabama Rush,” where the stakes are higher, the process is just as opaque, and there’s somehow even more white people involved. But it’s not fair to dismiss a court opinion just because they’re Trump judges. After all, many Trump-appointed judges have stood on principle in cases involving the government — indeed, Judge Immergut (who had to take over this case because Judge Michael Simon is married to a politician who spoke against the administration plan — if that’s the standard, wait until people hear what Ginni Thomas says!) is a Trump appointee. Let’s just say it’s a necessary but not sufficient condition.
Instead, let’s dismiss the opinion because it’s intellectually vapid and factually dishonest.
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.’”
This is not, in fact, what the statute says. In fact, §12406 authorizes the president to use troops where the federal government “is unable with the regular forces to execute the laws of the United States.” What does that mean? According to Judges Nelson and Bade, it means “whatever the president says.” After paying lip service to recent Ninth Circuit precedent clarifying that the White House can’t make unfounded declarations to justify sending troops, the majority strung together a series of anecdotes that amount to little more than “there was once a protest” — regardless of whether it actually prevented law enforcement from functioning — and said that’s enough to make Trump’s decision colorable.
But the plural of anecdotes is not data as they say, and, in dissent, Judge Susan Graber pulled up the actual reports and challenged the majority to explain how this is colorably… anything.
The worst that ever happened in Portland was all handled by local law enforcement, a critical point since the statute places an explicit caveat that the breakdown must be beyond the capacity of regular forces to warrant military involvement.
In response, the majority counters:
First, the district court erred by determining that the President’s “colorable assessment of the facts” is limited by undefined temporal restrictions and by the district court’s own evaluation of the level of violence necessary to impact the execution of federal laws. Thus, the district court determined that it would apply Newsom’s deferential “colorable basis” standard to the facts “as they existed at the time [the President] federalized the National Guard.”
These “undefined temporal restrictions” are grounded in what the rest of us would call “the English language.” As much as the country might benefit from reimposing Reconstruction on the South based on its “history” of rebellion, past administrations respected that their authority was limited by the present tense. To the extent Portland’s ICE agents really are so soft that they couldn’t do their jobs in July, it has little bearing determining that it “IS UNABLE with the regular forces to execute the laws of the United States” come September. Nor can the president assert that ICE might potentially at some undefined future point become unable.
Congress, presumably, knows how to write forward-looking language. It chose not to do so.
The statute delegates the authority to make that determination to the President and does not limit the facts and circumstances that the President may consider in doing so. Indeed, the inherently subjective nature of this evaluation demonstrates that the President has the authority to identify and weigh the relevant facts under § 12406(3). The President can, and should, consider the totality of the circumstances when determining whether he “is unable with the regular forces to execute the laws of the United States.”
Donald Trump has publicly claimed that Portland is a “war zone” that is “on fire.” The statute may not explicitly “limit the facts and circumstances” a president can consider, but one presumes a limit excluding fiction. Alas, the majority has an answer for this and it is, “The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”
While we’re on fake claims, the administration’s argument that “regular forces” couldn’t handle the protests cited an unusually high number of ICE agents sent to the Portland office. Judge Graber pointed out that this seems to be a bunch of people cycling in and out a handful at a time. Less a surge than a revolving door — probably put in to set up this argument for any judge willing to treat it with undue credulity.
Second, the district court erred by placing too much weight on statements the President made on social media. The district court interpreted President Trump characterizing Portland as “War ravaged,” as the equivalent of the President “ignoring the facts on the ground.” As such, the district court relied on these statements to disregard other facts that do “reflect[] a colorable assessment of the facts and law within a range of honest judgment.”
When Homer Simpson rose to lead the Stonecutters, he once tried to fold a losing poker hand, only for the other cultists to jump in and declare that he had “the Royal Sampler.” Apparently, Trump’s judges on the federal judiciary now take their cues from Lenny and Carl. The president — or at least THIS president — is owed such extreme deference that the courts are allowed to substitute their own imagined justifications if the president’s own words don’t measure up to “colorable.”
That’s not legalism, it’s epistemic control: the right to define what counts as a threat, what counts as a rebellion, and what counts as the ability to execute laws. When courts declare that even fantasy threats justify real-world force, we’re no longer interpreting the Constitution, we’re narrating empire.
The per curiam opinion rested its laurels on the ability to execute the laws justification, but give a special shout out to Judge Nelson, who added a gratuitous concurrence to clarify that he’d also allow Trump to define a gathering of furries outside a government office as a “rebellion” if he wanted. Citing the sort of ersatz history and tradition that carries the day at the Supreme Court, Nelson cites the history of founding era rebellions like the Whiskey Rebellion and Shays’s Rebellion and asserts with a straight face that these are more or less the same as Portland. This comparison reflects “history” in the same way Ancient Aliens fits on the History Channel. And even if they bore any resemblance to Portland, the government sent troops while they were ongoing.
He also spills ink on the idea that Trump’s judgment shouldn’t be reviewable at all. No one has standing. Nothing is reviewable. Just the whims of the Mad King of Mar-a-Lago all the way down.
But you don’t move up the Federalist Society’s cursus honorum for backing away from an insane statement or two.
More or less absent from this historical review is the Posse Comitatus Act, which frames the existing Insurrection Act as less empowering than limiting. The Insurrection Act is classically understood as a series of legal obstacles a president must overcome rather than a grant of deferential power. This opinion attempts to flip this on its head, continuing the baseless sanewashing coming from the media, by suggesting the Insurrection Act is an unchecked magic wand that just never got used like this out because prior presidents lacked Trump’s legal acumen to read the invisible ink between the lines of the statute.
Judge Graber’s dissent lays out the stakes:
Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd. But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions. I strenuously dissent
The comparison to Trump v. United States is apt, not just because of its central litigant, but just like the justices who considered the possibility that their decision — as written — legalized political assassination, the judges here painted executive authority with a brush broad enough to greenlight any number of abuses. When establishing a rule, it’s not what you do, it’s what you justify — if the bar is set at “streaking hipsters three months ago amounts to a total breakdown in law now,” what happens when the White House says election day “could be violent” based on anonymous vibes? Claiming to be governed by laws and not men is all well and good, but rests on the premise that courts don’t rewrite the law as “whatever that dude thinks in the moment.” At that point, it’s all theater.
Judge Graber concludes her opinion, stressing, “Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.” With all due respect, that faith is getting harder to maintain when two members of a three-judge panel can look at people sitting in lawn chairs and see a war zone.
(Full opinion available on the next page…)
Earlier: TV Legal Analyst Begins Sanewashing Trump Declaring Martial Law
SCOTUS Greenlights SEAL Team 6 Solution
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Ninth Circuit Confirms Trump Can Send SEAL Team 6 To Assassinate Dancing Inflatable Frogs appeared first on Above the Law.
In Trump v. United States, the conservative majority of the Supreme Court considered the proposition that granting Donald Trump unchecked presidential immunity opened the door to a president sending commando units to assassinate political rivals without repercussion and said, “yeah, we’re cool with that.” Seemingly taking vibe guidance from that opinion, a divided Ninth Circuit panel fronted by Judges Ryan D. Nelson and Bridget S. Bade (take a guess who appointed them!), shot down District Judge Karin Immergut’s temporary restraining order blocking the Trump administration from deploying National Guard troops — over the state’s objection — to perform law enforcement duty around the Portland ICE office where a handful of dancing inflatable animals gathered in protest.
The Ninth Circuit will inevitably hear the case en banc — the process is apparently already underway — but in the meantime, this decision becomes another collectible in the White House’s effort to string together step-wise court victories toward laying the legal groundwork for unilateral authoritarianism. That’s really what’s going on here. The administration is fully aware that they don’t need the National Guard to secure ICE from eight hippies. But they’re counting on judges like Nelson and Bade to write opinions establishing that Trump’s subjective assessment of “danger” justifies military deployment — precedent that will be ready and waiting when he wants troops at polling places or outside state capitols during vote certification.
Like the proverbial inflatable frog in the pot.
Judges Nelson and Bade are both Trump appointees who rose to their station through the MAGA patronage pipeline, a sort of judicial “Alabama Rush,” where the stakes are higher, the process is just as opaque, and there’s somehow even more white people involved. But it’s not fair to dismiss a court opinion just because they’re Trump judges. After all, many Trump-appointed judges have stood on principle in cases involving the government — indeed, Judge Immergut (who had to take over this case because Judge Michael Simon is married to a politician who spoke against the administration plan — if that’s the standard, wait until people hear what Ginni Thomas says!) is a Trump appointee. Let’s just say it’s a necessary but not sufficient condition.
Instead, let’s dismiss the opinion because it’s intellectually vapid and factually dishonest.
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.’”
This is not, in fact, what the statute says. In fact, §12406 authorizes the president to use troops where the federal government “is unable with the regular forces to execute the laws of the United States.” What does that mean? According to Judges Nelson and Bade, it means “whatever the president says.” After paying lip service to recent Ninth Circuit precedent clarifying that the White House can’t make unfounded declarations to justify sending troops, the majority strung together a series of anecdotes that amount to little more than “there was once a protest” — regardless of whether it actually prevented law enforcement from functioning — and said that’s enough to make Trump’s decision colorable.
But the plural of anecdotes is not data as they say, and, in dissent, Judge Susan Graber pulled up the actual reports and challenged the majority to explain how this is colorably… anything.
The worst that ever happened in Portland was all handled by local law enforcement, a critical point since the statute places an explicit caveat that the breakdown must be beyond the capacity of regular forces to warrant military involvement.
In response, the majority counters:
First, the district court erred by determining that the President’s “colorable assessment of the facts” is limited by undefined temporal restrictions and by the district court’s own evaluation of the level of violence necessary to impact the execution of federal laws. Thus, the district court determined that it would apply Newsom’s deferential “colorable basis” standard to the facts “as they existed at the time [the President] federalized the National Guard.”
These “undefined temporal restrictions” are grounded in what the rest of us would call “the English language.” As much as the country might benefit from reimposing Reconstruction on the South based on its “history” of rebellion, past administrations respected that their authority was limited by the present tense. To the extent Portland’s ICE agents really are so soft that they couldn’t do their jobs in July, it has little bearing determining that it “IS UNABLE with the regular forces to execute the laws of the United States” come September. Nor can the president assert that ICE might potentially at some undefined future point become unable.
Congress, presumably, knows how to write forward-looking language. It chose not to do so.
The statute delegates the authority to make that determination to the President and does not limit the facts and circumstances that the President may consider in doing so. Indeed, the inherently subjective nature of this evaluation demonstrates that the President has the authority to identify and weigh the relevant facts under § 12406(3). The President can, and should, consider the totality of the circumstances when determining whether he “is unable with the regular forces to execute the laws of the United States.”
Donald Trump has publicly claimed that Portland is a “war zone” that is “on fire.” The statute may not explicitly “limit the facts and circumstances” a president can consider, but one presumes a limit excluding fiction. Alas, the majority has an answer for this and it is, “The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”
While we’re on fake claims, the administration’s argument that “regular forces” couldn’t handle the protests cited an unusually high number of ICE agents sent to the Portland office. Judge Graber pointed out that this seems to be a bunch of people cycling in and out a handful at a time. Less a surge than a revolving door — probably put in to set up this argument for any judge willing to treat it with undue credulity.
Second, the district court erred by placing too much weight on statements the President made on social media. The district court interpreted President Trump characterizing Portland as “War ravaged,” as the equivalent of the President “ignoring the facts on the ground.” As such, the district court relied on these statements to disregard other facts that do “reflect[] a colorable assessment of the facts and law within a range of honest judgment.”
When Homer Simpson rose to lead the Stonecutters, he once tried to fold a losing poker hand, only for the other cultists to jump in and declare that he had “the Royal Sampler.” Apparently, Trump’s judges on the federal judiciary now take their cues from Lenny and Carl. The president — or at least THIS president — is owed such extreme deference that the courts are allowed to substitute their own imagined justifications if the president’s own words don’t measure up to “colorable.”
That’s not legalism, it’s epistemic control: the right to define what counts as a threat, what counts as a rebellion, and what counts as the ability to execute laws. When courts declare that even fantasy threats justify real-world force, we’re no longer interpreting the Constitution, we’re narrating empire.
The per curiam opinion rested its laurels on the ability to execute the laws justification, but give a special shout out to Judge Nelson, who added a gratuitous concurrence to clarify that he’d also allow Trump to define a gathering of furries outside a government office as a “rebellion” if he wanted. Citing the sort of ersatz history and tradition that carries the day at the Supreme Court, Nelson cites the history of founding era rebellions like the Whiskey Rebellion and Shays’s Rebellion and asserts with a straight face that these are more or less the same as Portland. This comparison reflects “history” in the same way Ancient Aliens fits on the History Channel. And even if they bore any resemblance to Portland, the government sent troops while they were ongoing.
He also spills ink on the idea that Trump’s judgment shouldn’t be reviewable at all. No one has standing. Nothing is reviewable. Just the whims of the Mad King of Mar-a-Lago all the way down.
But you don’t move up the Federalist Society’s cursus honorum for backing away from an insane statement or two.
More or less absent from this historical review is the Posse Comitatus Act, which frames the existing Insurrection Act as less empowering than limiting. The Insurrection Act is classically understood as a series of legal obstacles a president must overcome rather than a grant of deferential power. This opinion attempts to flip this on its head, continuing the baseless sanewashing coming from the media, by suggesting the Insurrection Act is an unchecked magic wand that just never got used like this out because prior presidents lacked Trump’s legal acumen to read the invisible ink between the lines of the statute.
Judge Graber’s dissent lays out the stakes:
Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd. But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions. I strenuously dissent
The comparison to Trump v. United States is apt, not just because of its central litigant, but just like the justices who considered the possibility that their decision — as written — legalized political assassination, the judges here painted executive authority with a brush broad enough to greenlight any number of abuses. When establishing a rule, it’s not what you do, it’s what you justify — if the bar is set at “streaking hipsters three months ago amounts to a total breakdown in law now,” what happens when the White House says election day “could be violent” based on anonymous vibes? Claiming to be governed by laws and not men is all well and good, but rests on the premise that courts don’t rewrite the law as “whatever that dude thinks in the moment.” At that point, it’s all theater.
Judge Graber concludes her opinion, stressing, “Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.” With all due respect, that faith is getting harder to maintain when two members of a three-judge panel can look at people sitting in lawn chairs and see a war zone.
(Full opinion available on the next page…)
Earlier: TV Legal Analyst Begins Sanewashing Trump Declaring Martial Law
SCOTUS Greenlights SEAL Team 6 Solution
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
