And another irresponsible and partisan court ruling is stayed…
Last night, in Newsom v. Trump, Federal District Court Judge Charles Breyer issued a ruling against President Donald Trump’s federalization of some 4000 California National Guard troops without California Governor Newsom’s request to stop the violent protests against ICE deportations in Los Angeles.
Gee, what a surprise: the judge is the brother of retired knee-jerk progressive Supreme Court Justice Stephen Breyer. With amazing speed, Reason had a “Yay team!” essay to post by libertarian legal scholar Ilya Somin, who wrote, “Judge Breyer’s opinion strikes me as impressive and compelling.”
That’s odd: Breyer’s opinion strikes me as “it isn’t what it is” partisan junk, and plainly so. Somin’s defense of it struck me as libertarian junk. Somin:
“As Judge Breyer explains, National Guard troops are normally under the control of their state governments, and can only be federalized in narrowly specified emergency circumstances. The statute Trump relied on to federalize California National Guard troops, 10 U.S.C. Section 12406, can only be used in one of the following situations:
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 professor then writes that (2), the obvious justification being used by Trump, doesn’t work because “there is no rebellion.” There isn’t? Democratic cities across the country have been refusing to allow illegal aliens to be arrested and deported and openly defying Federal law. Now the “sanctuary cities” are allowing those illegals and their supporters to riot and endanger ICE agents while mayors and governors call the protests “peaceful” (and some governors call the Ice Agents “the Gustapo”…)
Rebelling against Federal law is a rebellion.
Breyer’s opinion did not even mention President Johnson sending in the Guard to Birmingham, Alabama without Governor George Wallace’s assent, the famous precedent for Trump’s action. How convenient.
Then, after Reason’s applause, the U.S. 9th Circuit Court of Appeals paused Breyer’s order A three-judge panel on the 9th Circuit scheduled a hearing in the case five days from now.
Sooner or later, Trump’s move will be ruled ethical, legal and legitimate.
Ethics Alarms 
I wonder if we should go back in time and tell Ike that he had no right to federalize the Guard to help integrate Central High over the clear objections of Governor Faubus?
I feel like Libertarians become targets when Republicans want to say or do stupid things.
It’s telling, for instance, that you copy and pasted the entire article up to the point where it makes the case:
“There is obviously no “invasion” of LA by a foreign nation. Trump relies mainly on the claim that there is a “rebellion.” Judge Breyer effectively rebuts it. Utilizing definitions from the period around 1903 (when this law was enacted), he conclude a “rebellion” must have 4 characteristics:
In addition to fitting contemporary understandings at the time of enactment, this definition has the virtue of ensuring that a “rebellion” is an unusual emergency situation, not an everyday occurrence. If “rebellion” is defined as any violent resistance to law enforcement, then rebellions are occurring in virtually every city virtually every day; for example, any time suspects forcibly resist arrest by police.”
Me again…. I think this is probably right. Words have meaning in law, regardless of whether purposefully misreading them would suit what you’d like as the policy prescription of the day. This is exactly what the Democrats do on the regular, I’ve often referred to it as “newfound respect”: They find laws where a plain reading of the text seems to do what they want it to, ignore a century of case law and context, and run with it to the hills until their plan gets shellacked by reality.
The standard of “Rebelling against Federal law is a rebellion” is obviously not what this law envisions, for exactly the reason Somin says: The national guard isn’t allowed to police every instance of Federal Law being broken.
Respectfully, HT, I can see a valid interpretation of rebellion in this case.
Bingo
Bingo.
Bingo.
Bingo.
Respectfully, I think this is simplistic.
By that logic, January 6th was unambiguously a rebellion, and the 10 year sentences being doled out were just. If January 6th wasn’t a rebellion (and it wasn’t), then there must be some standards to disambiguate that, and those standards probably also eliminate these riots from the group.
And that’s the problem with Newfound Respect… By trying to squint and square-peg-star-hole specific instances to conform to legal definitions to fit a purpose, you often find yourself making arguments you didn’t mean to make.
J-6 was not organized, it was in a single, limited locale, it was over in a day, and the National Guard could have and should have been called in.
Is that the standard?
I am confident that you are wrong, HT. First, there have been weapons. Bricks have been thrown; at least one rioter used a Molotov cocktail. Second (again) the opinion doesn’t deal with the precedents, and neither do you. You also ignore, as he does, the nationwide rioting based on the same LA defiance of federal immigration law. Frankly, I don’t see how anyone can call the sanctuary cities mess anything BUT a rebellion, and Gov. Newsom’s deliberate decision to allow the rioting to continue is part of it. Is the President supposed to wait until an ICE agent is shot?
I stopped quoting at the statute summary, and included a link to the opinion.
Personally, I think (3) covers this situation:
(3) the President is unable with the regular forces to execute the laws of the United States.
Federal buildings are under attack and federal agents are unable to execute the laws of the United States. I’m not sure the Trump administration even has to choose which of the three statutory provisions applies. If any of them are applicable, the federalization of the Guard is permitted.
I never knew until recently that the federal district court judiciary is more filled with idiot hacks than is Congress. Just ignore the pompous asses behind the judicial robes.
That’s been a problem forever, but Obama’s appointees were more brazen than most.
As to the third option, I also responded below. I think that argument is better, but still not great because it ignores the separation of powers. What are the federal laws that Trump isn’t being able to enforce with regular forces?
Certainly, immigration laws, which are solely within the ambit of the Federal government, as was repeatedly established during the Obama administration, certainly here in Maricopa County where Joe Arpaio was villainized for rounding up illegal aliens. But in this case, the federal agents were evidently serving warrants relating to a guy not paying import duties on stuff he was importing from China. At least the left hasn’t yet asserted trying to enforce import duties is inhumane and should be stopped by any means necessary.
Even if, arguendo, you do legally shoot down the second justification as-written, #3 is still sitting right there and I don’t see how anyone can argue that IT doesn’t apply.
Clearly the ICE agents (the “regular forces”) are being resisted with force and are unable to execute the laws of the United States without assistance because of it.
–Dwayne
I don’t know that this had the benefit of truth.
I think the easy response is that there’s a division of power, the state and municipal governments are abrogating their duty, but that doesn’t transfer state responsibilities to the fed outside some very specific circumstances.
And is ICE really being impeded? My impression is that ICE is doing their jobs, and then the riots are happening, often miles away from where the ICE activities happened. Individual officers might be impeded, but I don’t think the mission was failing.
You don’t get to call in the National Guard every time someone picks up a brick. You know very well that when you’re applying a four prong test that all the tests need to be passed, not just the convenient ones.
As for the precedents… I don’t know. You could be right. But I have it in the back of my mind that if you were, the National Guard would have been activated more often than it was. The best part about this is that we’ll get to see how the Supreme Court rules, because it’s almost certainly going there, and Trump’s Justices have displayed enough contrariness to make it interesting.
The reason this hasn’t happened since the Sixties is that before the Democrats’ decision to morph into Bolsheviks in 2020, governors called in the Guard when it was needed.
In general I am in favor of States Rights, but in this case the Federal Government has a clear and present duty to apply the resources necessary to restore civil order and the rule of law. The Supreme Court or Congress need to clarify the lower Federal Courts area of jurisdiction.
Those three acceptable justifications are not prongs, but an even/or/or. #2 and #3 clearly apply. Breyer is all wet.
But you don’t get to decide that. The law (10 USC Section 12406) says that the National Guard can only be activated by the Feds over the protests of the state in three circumstances and THAT was the this, that, or choices. Trump’s admin chose 2:
“there is a rebellion or danger of a rebellion against the authority of the Government of the United States“
The judge created a four prong test to outline what was or was not a rebellion:
“First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.”
In arguing that this was a rebellion because people were armed with bricks, you pass the first test. Was this organized? I really don’t think you can organize a riot, and even if you wanted to argue parts of it were, I don’t think it would pass a legal standard. Was the rebellion open and avowed? Again maybe, but I don’t know if it was to a legal standard. Was it against the government as a whole, as opposed to in opposition of a single issue? No, it obviously fails there.
Now, you could make the argument that the judge’s tests aren’t definitive, and sure… They’re almost certainly going to be tested at SCOTUS, but they don’t seem facially absurd. But let’s act as if they’re wrong… Define the terms. What’s the test? What is a riot? What is a movement sufficient that the feds can step in?
Because if the answer is “someone threw a brick” then it seems like we’re approaching the point where the last law is down, and when Democrats eventually form government again and turn round on you, where will you hide, the laws all being flat?
The National Guard does not replace the police.
The riots were organized. There was certainly evidence of that. (There was no such evidence regarding J-6.)
There was an intent to prevent lawful law enforcement, hence the 60’s civil rights precedent. Following the outrageous conduct of officials in Seattle, LA, Minnesota and Portland, it is no longer reasonable to assume that elected officials want to quell a riot, particularly in a “sanctuary state,” which is already in rebellion against Federal Law. The four prongs were arbitrary and contrived to undermine the President.After the BLM riots, there is a reasonable basis for a President to move in on the assumption that a given city and state wants civil unrest, just as George Wallace did—and those considerations should have been in the original judge’s reasoning.
HT. I often hear about Libertarians but I have less of an idea what they stand for. It seems to me that Libertarians should be totally against redistribution of income and progressive taxation.
I would think that Libertarians who I know advocate for the decriminalization of not outright legalization of drugs would also need to be against the use of Narcan or other lifesaving efforts that results from known risky behavior. Anything that mitigates consequences of behavior and places burdens on others would be an encroachment on others liberties.
I truly want your opinion because I know it will be well reasoned.
If you asked ten different people that question, you’d get ten different answers, and they could all be right. From old school Liberals looking for a label after being ejected from the left, to Anarchists who have some very unworkable beliefs… The common theme is Liberty, a focus on the rights of the individual, and the responsibilities that come with that.
What you do with that is often up to the individual. We tend to be more right-of-center because the left tends to be in favor of a bloated version of government, and we aren’t in for that. But that’s not a given, particularly where the right likes to spend a whole lot of money (prisons, military, social policy). We straddle a lot of issues. For example, on gender – Generally Libertarians won’t arrive on a position on someone’s gender identity that stems from their Libertarian-ness, so long as someone isn’t trying to use the state to enforce their ideology.
Because we have principled positions, we sometimes find ourselves at odds with people we normally agree with, I think when that happens, the people who would normally agree with us see our dissent as a betrayal. We’re often branded as unintelligent, ineffective, or insane, and to some degree (and to be fair), there’s a lot of autism and awkwardness in the movement, so some of that reputation is earned. But we’re also the foundational ideology of the Tea Party.
I am really enjoying the conversation between HT and everyone else. Understood, the Canadian system is different than the American systesm. However, I find myself asking which is more of a rebellion governors explicitly communicating intent to interfere with legitimate federal enforcement or citizens to protest legitimate covid lockdowns? What are the perceptions that justify heavy handed forceful responses.
Thank God Los Angeles hasn’t been turned into the Seattle of a few years ago. The ridiculous assertion “It’s only five blocks, nothing to see here” hasn’t carried the day.
Doesn’t it become time that the Trump administration starts ignoring all those injunctions from lower tier federal judges?
Donald Trump is now like Gulliver being tied done by the Lilliputians, and these activist judges are impeding the administration at any step of the way. It cannot go one for the remainder of the Trump administration, that any federal judge Pipsqueak from Podunk can tell the President how to execute his duties under Article II of the Constitution including foreign policy and use of the military.
If Trump throws done the gauntlet, and emulates Andrew Jackson “Judge Breyer has made his decision, now let him enforce it”, then it would force both Congress and the Supreme Court to come into action. Congress could reduce the number of federal circuits, eliminating the circuits with the most activist rulings. The Supreme Court could eliminate the use of TRO’s and injunctions at a national level by the lower courts. The goal for the executive branch should be to have a clear delineation of the authority of each branch of government, with checks on the judiciary as well. and end the de facto judicial supremacy which is a practice not found in the text of the Constitution.
This will force a crisis, but maybe that is what is needed to keep the country governable by the executive branch.
My opinion is that it is past due that the Trump administration starts defying all rulings from lower courts that impede his administration. Trump is like Gulliver being tied down by the Lilliputians. It cannot stand that any decision made by Trump on the agenda for which he was elected is being blocked by a judge Pipsqueak from Podunk at a lower circuit federal court. It is time that Trump does an Andrew Jackson “Judge Breyer has made his decision, now let him enforce it”.
Ignoring the courts will force both Congress and Supreme Court to spring into action. Congress could eliminate some of the lower level courts (e.g. the most activist ones). This is because Congress has created those courts to reduce the workload of the Supreme Court. The Supreme Court may be forced to rule on the boundaries of the lower courts in national matters. All this needs to provide more constitutional clarity on the checks and balances between the three branches of government.
What we have right now is a de facto judicial supremacy, with lower level judges sitting on the chair of POTUS. This philosophy is NOT in the Constitution as written, as according to the Constitution the three branches are coequal, with various checks and balances between them. Judicial review was introduced in 1803 via the Marbury vs Madison decision; President Jefferson did not challenge the Supreme Court on the principle of judicial review because he agreed with the actual ruling against a decision by his predecessor.
So Trump needs to force the constitutional conflict by defying rulings impugning on his prerogatives under Article II of the Constitution in order to get this straightened out, and have the USA operate under a much healthier federal judiciary.
Why is “..in danger of..” ignored: option #1 says “… invasion or in danger of invasion”; option #2 says “.. rebellion or in danger of rebellion…”. So even if there is no invasion or rebellion at the moment, the observed activities over the past 3 or 4 days would lead the average observer to believe the situation is certainly headed that way unless strong opposition is offered.
A weapon is anything, any tool or implement one might use to do violence either in self-defense or for assault. Sticks, stones, baseball bats, broken beer bottles all qualify, even one-pound blocks of ice (frozen water bottles) make the cut. Maybe the judge should familiarize himself with some of the Second Amendment decisions that have been dropped in the past decade.
The argument that deporting illegal aliens because they are what undergird the local economy violates states rights harkens back to the pre-civil war era. It seems to me that our esteemed Senators Schiff and Padilla from California should take a lesson from Jefferson Davis when his state decided it was going its own way. Schiff and Padilla are taking up the ideas of John Calhoun of nullification which Davis finds contradictory to true state sovreignty.
The following is an excerpt from Davis’ resignation from the Senate.
I rise, Mr. President [John C. Breckinridge], for the purpose of announcing to the Senate that I have satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States. Under these circumstances, of course my functions are terminated here. It has seemed to me proper, however, that I should appear in the Senate to announce that fact to my associates, and I will say but very little more. The occasion does not invite me to go into argument; and my physical condition would not permit me to do so if it were otherwise; and yet it seems to become me to say something on the part of the State I here represent, on an occasion so solemn as this.
It is known to Senators who have served with me here, that I have for many years advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union. Therefore, if I had not believed there was justifiable cause; if I had thought that Mississippi was acting without sufficient provocation, or without an existing necessity, I should still, under my theory of the Government, because of my allegiance to the State of which I am a citizen, have been bound by her action. I, however, may be permitted to say that I do think she has justifiable cause, and I approve of her act. I conferred with her people before that act was taken, counseled them then that if the state of things which they apprehended should exist when the convention met, they should take the action which they have now adopted.
I hope none who hear me will confound this expression of mine with the advocacy of the right of a State to remain in the Union, and to disregard its constitutional obligations by the nullification of the law. Such is not my theory. Nullification and secession, so often confounded, are indeed antagonistic principles. Nullification is a remedy which it is sought to apply within the Union, and against the agent of the States. It is only to be justified when the agent has violated his constitutional obligation, and a State, assuming to judge for itself, denies the right of the agent thus to act, and appeals to the other States of the Union for a decision; but when the States themselves, and when the people of the States, have so acted as to convince us that they will not regard our constitutional rights, then, and then for the first time, arises the doctrine of secession in its practical application.
A great man who now reposes with his fathers, and who has been often arraigned for a want of fealty to the Union, advocated the doctrine of nullification, because it preserved the Union. It was because of his deep-seated attachment to the Union, his determination to find some remedy for existing ills short of a severance of the ties which bound South Carolina to the other States, that Mr. [John C.] Calhoun advocated the doctrine of nullification, which he proclaimed to be peaceful, to be within the limits of State power, not to disturb the Union, but only to be a means of bringing the agent before the tribunal of the States for their judgment.
Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever.
I therefore say I concur in the action of the people of Mississippi, believing it to be necessary and proper, and should have been bound by their action if my belief had been otherwise; and this brings me to the important point which I wish on this last occasion to present to the Senate. It is by this confounding of nullification and secession that the name of a great man, whose ashes now mingle with his mother earth, has been invoked to justify coercion against a seceded State. The phrase “to execute the laws,” was an expression which General Jackson applied to the case of a State refusing to obey the laws while yet a member of the Union. That is not the case which is now presented.. . .
The full text is from Jefferson Davis’ Farewell Address | The Papers of Jefferson Davis | Rice University
California and other states who believe that borders are somehow a violation of rights have a means in the House and Senate to address their concerns. Allowing, people to interfere with Federal authorities while they execute Constitutionally valid laws is an abrogation of the responsibilities of said states who derive enormous benefits from being part of the union. If they decide that secession is warranted because they find as Davis and the people of Mississippi did that the other states were violating their Constitutional rights let them do so at their peril.