{"id":135589,"date":"2025-10-21T16:52:43","date_gmt":"2025-10-22T00:52:43","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/10\/21\/ninth-circuit-confirms-trump-can-send-seal-team-6-to-assassinate-dancing-inflatable-frogs\/"},"modified":"2025-10-21T16:52:43","modified_gmt":"2025-10-22T00:52:43","slug":"ninth-circuit-confirms-trump-can-send-seal-team-6-to-assassinate-dancing-inflatable-frogs","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/10\/21\/ninth-circuit-confirms-trump-can-send-seal-team-6-to-assassinate-dancing-inflatable-frogs\/","title":{"rendered":"Ninth Circuit Confirms Trump Can Send SEAL Team 6 To Assassinate Dancing Inflatable Frogs"},"content":{"rendered":"<p>In <em><a href=\"https:\/\/abovethelaw.com\/2024\/07\/scotus-greenlights-seal-team-6-solution\/\" rel=\"nofollow noopener\" target=\"_blank\">Trump v. United States<\/a><\/em>, 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, \u201cyeah, we\u2019re cool with that.\u201d 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\u2019s temporary restraining order blocking the Trump administration from deploying National Guard troops \u2014 over the state\u2019s objection \u2014 to perform law enforcement duty around the Portland ICE office where a handful of dancing inflatable animals gathered in protest.<\/p>\n<p>The Ninth Circuit will inevitably hear the case <em>en banc<\/em> \u2014 <a href=\"https:\/\/davisvanguard.org\/2025\/10\/trump-portland-national-guard-appeal\/\" rel=\"nofollow noopener\" target=\"_blank\">the process is apparently already underway<\/a> \u2014 but in the meantime, this decision becomes another collectible in the White House\u2019s effort to string together step-wise court victories toward laying the legal groundwork for unilateral authoritarianism. That\u2019s really what\u2019s going on here. The administration is fully aware that they don\u2019t need the National Guard to secure ICE from eight hippies. But they\u2019re counting on judges like Nelson and Bade to write opinions establishing that Trump\u2019s subjective assessment of \u201cdanger\u201d justifies military deployment \u2014 precedent that will be ready and waiting when he wants troops at polling places or outside state capitols during vote certification.<\/p>\n<p>Like the proverbial inflatable frog in the pot.<\/p>\n<p>Judges Nelson and Bade are both Trump appointees who rose to their station through the MAGA patronage pipeline, a sort of judicial \u201cAlabama Rush,\u201d where the stakes are higher, the process is just as opaque, and there\u2019s somehow even <em>more<\/em> white people involved. But it\u2019s not fair to dismiss a court opinion just because they\u2019re Trump judges. After all, many Trump-appointed judges have stood on principle in cases involving the government \u2014 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 \u2014 if that\u2019s the standard, wait until people hear what Ginni Thomas says!) is a Trump appointee. Let\u2019s just say it\u2019s a necessary but not sufficient condition.<\/p>\n<p>Instead, let\u2019s dismiss the opinion because it\u2019s intellectually vapid and factually dishonest. <\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>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. \u00a7 12406(3), which authorizes the federalization of the National Guard when \u201cthe President is unable with the regular forces to execute the laws of the United States.\u201d The evidence the President relied on reflects a \u201ccolorable assessment of the facts and law within a \u2018range of honest judgment.\u2019\u201d<\/p>\n<\/blockquote>\n<p>This is not, in fact, what the statute says. In fact, \u00a712406 authorizes the president to use troops where the federal government \u201cis unable with the regular forces to execute the laws of the United States.\u201d What does that mean? According to Judges Nelson and Bade, it means \u201cwhatever the president says.\u201d After paying lip service to recent Ninth Circuit precedent clarifying that the White House can\u2019t make unfounded declarations to justify sending troops, the majority strung together a series of anecdotes that amount to little more than \u201cthere was once a protest\u201d \u2014 regardless of whether it actually prevented law enforcement from functioning \u2014 and said that\u2019s enough to make Trump\u2019s decision colorable. <\/p>\n<p>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\u2026 anything.<\/p>\n<figure class=\"wp-block-image aligncenter size-full is-resized\"><img data-recalc-dims=\"1\" decoding=\"async\" loading=\"lazy\" width=\"1080\" height=\"483\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2025\/10\/Screenshot-2025-10-21-at-1.29.51-PM.png?resize=1080%2C483&#038;ssl=1\" alt=\"\" class=\"wp-image-1171378\" title=\"\"><figcaption><\/figcaption><\/figure>\n<p>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. <\/p>\n<p>In response, the majority counters:<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>First, the district court erred by determining that the President\u2019s \u201ccolorable assessment of the facts\u201d is limited by undefined temporal restrictions and by the district court\u2019s 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\u2019s deferential \u201ccolorable basis\u201d standard to the facts \u201cas they existed at the time [the President] federalized the National Guard.\u201d<\/p>\n<\/blockquote>\n<p>These \u201cundefined temporal restrictions\u201d are grounded in what the rest of us would call \u201cthe English language.\u201d As much as the country might benefit from reimposing Reconstruction on the South based on its \u201chistory\u201d of rebellion, past administrations respected that their authority was limited by the present tense. To the extent Portland\u2019s ICE agents really are so soft that they couldn\u2019t do their jobs in July, it has little bearing determining that it \u201cIS UNABLE with the regular forces to execute the laws of the United States\u201d come September. Nor can the president assert that ICE might potentially at some undefined future point become unable. <\/p>\n<p>Congress, presumably, knows how to write forward-looking language. It chose not to do so. <\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>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 \u00a7 12406(3). The President can, and should, consider the totality of the circumstances when determining whether he \u201cis unable with the regular forces to execute the laws of the United States.\u201d<\/p>\n<\/blockquote>\n<p>Donald Trump has <a href=\"https:\/\/www.msnbc.com\/opinion\/msnbc-opinion\/portland-ice-protests-trump-ai-video-rcna236980\" rel=\"nofollow noopener\" target=\"_blank\">publicly claimed that Portland is a \u201cwar zone\u201d that is \u201con fire.\u201d<\/a>  The statute may not explicitly \u201climit the facts and circumstances\u201d a president can consider, but one presumes a limit excluding <em>fiction<\/em>. Alas, the majority has an answer for this and it is, \u201cThe Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.\u201d<\/p>\n<p>While we\u2019re on fake claims, the administration\u2019s argument that \u201cregular forces\u201d couldn\u2019t 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 \u2014 probably put in to set up this argument for any judge willing to treat it with undue credulity.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>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 \u201cWar ravaged,\u201d as the equivalent of the President \u201cignoring the facts on the ground.\u201d As such, the district court relied on these statements to disregard other facts that do \u201creflect[] a colorable assessment of the facts and law within a range of honest judgment.\u201d<\/p>\n<\/blockquote>\n<p>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 \u201cthe Royal Sampler.\u201d Apparently, Trump\u2019s judges on the federal judiciary now take their cues from Lenny and Carl. The president \u2014 or at least THIS president \u2014 is owed such extreme deference that the courts are allowed to substitute their own imagined justifications if the president\u2019s own words don\u2019t measure up to \u201ccolorable.\u201d <\/p>\n<p>That\u2019s not legalism, it\u2019s 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\u2019re no longer interpreting the Constitution, we\u2019re narrating empire.<\/p>\n<p>The <em>per curiam<\/em> opinion rested its laurels on the <em>ability to execute the laws<\/em> justification, but give a special shout out to Judge Nelson, who added a gratuitous concurrence to clarify that he\u2019d also allow Trump to define a gathering of furries outside a government office as a \u201crebellion\u201d 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\u2019s Rebellion and asserts with a straight face that these are more or less the same as Portland. This comparison reflects \u201chistory\u201d in the same way Ancient Aliens fits on the History Channel. And even if they bore any resemblance to Portland, the government sent troops <em>while they were ongoing<\/em>.<\/p>\n<p>He also spills ink on the idea that Trump\u2019s judgment shouldn\u2019t be reviewable <em>at all<\/em>. No one has standing. Nothing is reviewable. Just the whims of the Mad King of Mar-a-Lago all the way down.<\/p>\n<p>But you don\u2019t move up the Federalist Society\u2019s <em>cursus honorum<\/em> for backing away from an insane statement or two.<\/p>\n<p>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, <a href=\"https:\/\/abovethelaw.com\/2025\/10\/tv-legal-analyst-begins-sanewashing-trump-declaring-martial-law\/\" rel=\"nofollow noopener\" target=\"_blank\">continuing the baseless sanewashing coming from the media<\/a>, by suggesting the Insurrection Act is an unchecked magic wand that just never got used like this out because prior presidents lacked Trump\u2019s legal acumen to read the invisible ink between the lines of the statute. <\/p>\n<p>Judge Graber\u2019s dissent lays out the stakes:<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Given Portland protesters\u2019 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\u2019s ruling, which accepts the government\u2019s characterization of Portland as a war zone, as merely absurd. But today\u2019s decision is not merely absurd. It erodes core constitutional principles, including sovereign States\u2019 control over their States\u2019 militias and the people\u2019s First Amendment rights to assemble and to object to the government\u2019s policies and actions. I strenuously dissent<\/p>\n<\/blockquote>\n<p>The comparison to <em>Trump v. United States<\/em> is apt, not just because of its central litigant, but just like the justices who considered the possibility that their decision \u2014 as written \u2014 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\u2019s not what you do, it\u2019s what you justify \u2014 if the bar is set at \u201cstreaking hipsters three months ago amounts to a total breakdown in law now,\u201d what happens when the White House says election day \u201ccould be violent\u201d 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\u2019t rewrite the law as \u201cwhatever that dude thinks in the moment.\u201d At that point, it\u2019s all theater. <\/p>\n<p>Judge Graber concludes her opinion, stressing, \u201cAbove all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.\u201d 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.<\/p>\n<p><em>(Full opinion available on the next page\u2026)<\/em><\/p>\n<p><strong>Earlier<\/strong>: <a href=\"https:\/\/abovethelaw.com\/2025\/10\/tv-legal-analyst-begins-sanewashing-trump-declaring-martial-law\/\" rel=\"nofollow noopener\" target=\"_blank\">TV Legal Analyst Begins Sanewashing Trump Declaring Martial Law<\/a><br \/><a href=\"https:\/\/abovethelaw.com\/2024\/07\/scotus-greenlights-seal-team-6-solution\/\" rel=\"nofollow noopener\" target=\"_blank\">SCOTUS Greenlights SEAL Team 6 Solution<\/a><\/p>\n<hr>\n<p><strong><em><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" class=\"alignright  wp-image-443318\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2016\/11\/Headshot-300x200.jpg?resize=188%2C125&#038;ssl=1\" alt=\"Headshot\" width=\"188\" height=\"125\" title=\"\"><a href=\"http:\/\/abovethelaw.com\/author\/joe-patrice\/\" target=\"_blank\" rel=\"noopener nofollow\">Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of <a href=\"http:\/\/legaltalknetwork.com\/podcasts\/thinking-like-a-lawyer\/\" target=\"_blank\" rel=\"noopener nofollow\">Thinking Like A Lawyer<\/a>. Feel free to\u00a0<a href=\"mailto:joepatrice@abovethelaw.com\">email<\/a> any tips, questions, or comments. Follow him on\u00a0<a href=\"https:\/\/twitter.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Twitter<\/a>\u00a0or <a href=\"https:\/\/bsky.app\/profile\/joepatrice.bsky.social\" target=\"_blank\" rel=\"noopener nofollow\">Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a <a href=\"https:\/\/www.rpnexecsearch.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<p>The post <a href=\"https:\/\/abovethelaw.com\/2025\/10\/ninth-circuit-confirms-trump-can-send-seal-team-6-to-assassinate-dancing-inflatable-frogs\/\" rel=\"nofollow noopener\" target=\"_blank\">Ninth Circuit Confirms Trump Can Send SEAL Team 6 To Assassinate Dancing Inflatable Frogs<\/a> appeared first on <a href=\"https:\/\/abovethelaw.com\/\" rel=\"nofollow noopener\" target=\"_blank\">Above the Law<\/a>.<\/p>\n<figure class=\"post-single__featured-image post-single__featured-image--medium alignright\"><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" width=\"300\" height=\"200\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2025\/10\/GettyImages-2239338875-300x200.jpg?resize=300%2C200&#038;ssl=1\" class=\"attachment-medium size-medium wp-post-image\" alt=\"\" title=\"\"><figcaption class=\"post-single__featured-image-caption\">\n\t\t\t\t\t\t\t(Photo by Stephen Lam\/San Francisco Chronicle via Getty Images)\t\t\t\t\t\t<\/figcaption><\/figure>\n<p>In <em><a href=\"https:\/\/abovethelaw.com\/2024\/07\/scotus-greenlights-seal-team-6-solution\/\" rel=\"nofollow noopener\" target=\"_blank\">Trump v. United States<\/a><\/em>, 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, \u201cyeah, we\u2019re cool with that.\u201d 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\u2019s temporary restraining order blocking the Trump administration from deploying National Guard troops \u2014 over the state\u2019s objection \u2014 to perform law enforcement duty around the Portland ICE office where a handful of dancing inflatable animals gathered in protest.<\/p>\n<p>The Ninth Circuit will inevitably hear the case <em>en banc<\/em> \u2014 <a href=\"https:\/\/davisvanguard.org\/2025\/10\/trump-portland-national-guard-appeal\/\" rel=\"nofollow noopener\" target=\"_blank\">the process is apparently already underway<\/a> \u2014 but in the meantime, this decision becomes another collectible in the White House\u2019s effort to string together step-wise court victories toward laying the legal groundwork for unilateral authoritarianism. That\u2019s really what\u2019s going on here. The administration is fully aware that they don\u2019t need the National Guard to secure ICE from eight hippies. But they\u2019re counting on judges like Nelson and Bade to write opinions establishing that Trump\u2019s subjective assessment of \u201cdanger\u201d justifies military deployment \u2014 precedent that will be ready and waiting when he wants troops at polling places or outside state capitols during vote certification.<\/p>\n<p>Like the proverbial inflatable frog in the pot.<\/p>\n<p>Judges Nelson and Bade are both Trump appointees who rose to their station through the MAGA patronage pipeline, a sort of judicial \u201cAlabama Rush,\u201d where the stakes are higher, the process is just as opaque, and there\u2019s somehow even <em>more<\/em> white people involved. But it\u2019s not fair to dismiss a court opinion just because they\u2019re Trump judges. After all, many Trump-appointed judges have stood on principle in cases involving the government \u2014 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 \u2014 if that\u2019s the standard, wait until people hear what Ginni Thomas says!) is a Trump appointee. Let\u2019s just say it\u2019s a necessary but not sufficient condition.<\/p>\n<p>Instead, let\u2019s dismiss the opinion because it\u2019s intellectually vapid and factually dishonest. <\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>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. \u00a7 12406(3), which authorizes the federalization of the National Guard when \u201cthe President is unable with the regular forces to execute the laws of the United States.\u201d The evidence the President relied on reflects a \u201ccolorable assessment of the facts and law within a \u2018range of honest judgment.\u2019\u201d<\/p>\n<\/blockquote>\n<p>This is not, in fact, what the statute says. In fact, \u00a712406 authorizes the president to use troops where the federal government \u201cis unable with the regular forces to execute the laws of the United States.\u201d What does that mean? According to Judges Nelson and Bade, it means \u201cwhatever the president says.\u201d After paying lip service to recent Ninth Circuit precedent clarifying that the White House can\u2019t make unfounded declarations to justify sending troops, the majority strung together a series of anecdotes that amount to little more than \u201cthere was once a protest\u201d \u2014 regardless of whether it actually prevented law enforcement from functioning \u2014 and said that\u2019s enough to make Trump\u2019s decision colorable. <\/p>\n<p>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\u2026 anything.<\/p>\n<figure class=\"wp-block-image aligncenter size-full is-resized\"><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" width=\"1080\" height=\"483\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2025\/10\/Screenshot-2025-10-21-at-1.29.51-PM.png?resize=1080%2C483&#038;ssl=1\" alt=\"\" class=\"wp-image-1171378\" title=\"\"><figcaption><\/figcaption><\/figure>\n<p>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. <\/p>\n<p>In response, the majority counters:<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>First, the district court erred by determining that the President\u2019s \u201ccolorable assessment of the facts\u201d is limited by undefined temporal restrictions and by the district court\u2019s 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\u2019s deferential \u201ccolorable basis\u201d standard to the facts \u201cas they existed at the time [the President] federalized the National Guard.\u201d<\/p>\n<\/blockquote>\n<p>These \u201cundefined temporal restrictions\u201d are grounded in what the rest of us would call \u201cthe English language.\u201d As much as the country might benefit from reimposing Reconstruction on the South based on its \u201chistory\u201d of rebellion, past administrations respected that their authority was limited by the present tense. To the extent Portland\u2019s ICE agents really are so soft that they couldn\u2019t do their jobs in July, it has little bearing determining that it \u201cIS UNABLE with the regular forces to execute the laws of the United States\u201d come September. Nor can the president assert that ICE might potentially at some undefined future point become unable. <\/p>\n<p>Congress, presumably, knows how to write forward-looking language. It chose not to do so. <\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>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 \u00a7 12406(3). The President can, and should, consider the totality of the circumstances when determining whether he \u201cis unable with the regular forces to execute the laws of the United States.\u201d<\/p>\n<\/blockquote>\n<p>Donald Trump has <a href=\"https:\/\/www.msnbc.com\/opinion\/msnbc-opinion\/portland-ice-protests-trump-ai-video-rcna236980\" rel=\"nofollow noopener\" target=\"_blank\">publicly claimed that Portland is a \u201cwar zone\u201d that is \u201con fire.\u201d<\/a>  The statute may not explicitly \u201climit the facts and circumstances\u201d a president can consider, but one presumes a limit excluding <em>fiction<\/em>. Alas, the majority has an answer for this and it is, \u201cThe Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.\u201d<\/p>\n<p>While we\u2019re on fake claims, the administration\u2019s argument that \u201cregular forces\u201d couldn\u2019t 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 \u2014 probably put in to set up this argument for any judge willing to treat it with undue credulity.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>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 \u201cWar ravaged,\u201d as the equivalent of the President \u201cignoring the facts on the ground.\u201d As such, the district court relied on these statements to disregard other facts that do \u201creflect[] a colorable assessment of the facts and law within a range of honest judgment.\u201d<\/p>\n<\/blockquote>\n<p>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 \u201cthe Royal Sampler.\u201d Apparently, Trump\u2019s judges on the federal judiciary now take their cues from Lenny and Carl. The president \u2014 or at least THIS president \u2014 is owed such extreme deference that the courts are allowed to substitute their own imagined justifications if the president\u2019s own words don\u2019t measure up to \u201ccolorable.\u201d <\/p>\n<p>That\u2019s not legalism, it\u2019s 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\u2019re no longer interpreting the Constitution, we\u2019re narrating empire.<\/p>\n<p>The <em>per curiam<\/em> opinion rested its laurels on the <em>ability to execute the laws<\/em> justification, but give a special shout out to Judge Nelson, who added a gratuitous concurrence to clarify that he\u2019d also allow Trump to define a gathering of furries outside a government office as a \u201crebellion\u201d 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\u2019s Rebellion and asserts with a straight face that these are more or less the same as Portland. This comparison reflects \u201chistory\u201d in the same way Ancient Aliens fits on the History Channel. And even if they bore any resemblance to Portland, the government sent troops <em>while they were ongoing<\/em>.<\/p>\n<p>He also spills ink on the idea that Trump\u2019s judgment shouldn\u2019t be reviewable <em>at all<\/em>. No one has standing. Nothing is reviewable. Just the whims of the Mad King of Mar-a-Lago all the way down.<\/p>\n<p>But you don\u2019t move up the Federalist Society\u2019s <em>cursus honorum<\/em> for backing away from an insane statement or two.<\/p>\n<p>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, <a href=\"https:\/\/abovethelaw.com\/2025\/10\/tv-legal-analyst-begins-sanewashing-trump-declaring-martial-law\/\" rel=\"nofollow noopener\" target=\"_blank\">continuing the baseless sanewashing coming from the media<\/a>, by suggesting the Insurrection Act is an unchecked magic wand that just never got used like this out because prior presidents lacked Trump\u2019s legal acumen to read the invisible ink between the lines of the statute. <\/p>\n<p>Judge Graber\u2019s dissent lays out the stakes:<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Given Portland protesters\u2019 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\u2019s ruling, which accepts the government\u2019s characterization of Portland as a war zone, as merely absurd. But today\u2019s decision is not merely absurd. It erodes core constitutional principles, including sovereign States\u2019 control over their States\u2019 militias and the people\u2019s First Amendment rights to assemble and to object to the government\u2019s policies and actions. I strenuously dissent<\/p>\n<\/blockquote>\n<p>The comparison to <em>Trump v. United States<\/em> is apt, not just because of its central litigant, but just like the justices who considered the possibility that their decision \u2014 as written \u2014 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\u2019s not what you do, it\u2019s what you justify \u2014 if the bar is set at \u201cstreaking hipsters three months ago amounts to a total breakdown in law now,\u201d what happens when the White House says election day \u201ccould be violent\u201d 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\u2019t rewrite the law as \u201cwhatever that dude thinks in the moment.\u201d At that point, it\u2019s all theater. <\/p>\n<p>Judge Graber concludes her opinion, stressing, \u201cAbove all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.\u201d 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.<\/p>\n<p><em>(Full opinion available on the next page\u2026)<\/em><\/p>\n<p><strong>Earlier<\/strong>: <a href=\"https:\/\/abovethelaw.com\/2025\/10\/tv-legal-analyst-begins-sanewashing-trump-declaring-martial-law\/\" rel=\"nofollow noopener\" target=\"_blank\">TV Legal Analyst Begins Sanewashing Trump Declaring Martial Law<\/a><br \/><a href=\"https:\/\/abovethelaw.com\/2024\/07\/scotus-greenlights-seal-team-6-solution\/\" rel=\"nofollow noopener\" target=\"_blank\">SCOTUS Greenlights SEAL Team 6 Solution<\/a><\/p>\n<hr \/>\n<p><strong><em><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" class=\"alignright wp-image-443318\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2016\/11\/Headshot-300x200.jpg?resize=192%2C128&#038;ssl=1\" alt=\"Headshot\" width=\"192\" height=\"128\" title=\"\"><a href=\"http:\/\/abovethelaw.com\/author\/joe-patrice\/\" target=\"_blank\" rel=\"noopener nofollow\">Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of <a href=\"http:\/\/legaltalknetwork.com\/podcasts\/thinking-like-a-lawyer\/\" target=\"_blank\" rel=\"noopener nofollow\">Thinking Like A Lawyer<\/a>. Feel free to\u00a0<a href=\"https:\/\/abovethelaw.com\/cdn-cgi\/l\/email-protection#5f35303a2f3e2b2d363c3a1f3e3d30293a2b373a333e28713c3032\" rel=\"nofollow noopener\" target=\"_blank\">email<\/a> any tips, questions, or comments. Follow him on\u00a0<a href=\"https:\/\/twitter.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Twitter<\/a>\u00a0or <a href=\"https:\/\/bsky.app\/profile\/joepatrice.bsky.social\" target=\"_blank\" rel=\"noopener nofollow\">Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a <a href=\"https:\/\/www.rpnexecsearch.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<p><strong>1<\/strong> <a href=\"https:\/\/abovethelaw.com\/2025\/10\/ninth-circuit-confirms-trump-can-send-seal-team-6-to-assassinate-dancing-inflatable-frogs\/2\/\" rel=\"nofollow noopener\" target=\"_blank\">2<\/a><a href=\"https:\/\/abovethelaw.com\/2025\/10\/ninth-circuit-confirms-trump-can-send-seal-team-6-to-assassinate-dancing-inflatable-frogs\/2\/\" rel=\"nofollow noopener\" target=\"_blank\">Next \u00bb<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>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, \u201cyeah, we\u2019re cool with that.\u201d Seemingly taking vibe guidance from that opinion, a divided Ninth Circuit [&hellip;]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-135589","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135589","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=135589"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135589\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=135589"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=135589"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=135589"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}