Lawsplainer: Ninth Circuit Judge Makes The Case That Calling Up The National Guard Is A Decision Left To The President -- No Role For Judges.
Appeals Court blocks the District Court's Order about Portland with unsparing language in a powerful counterpoint to the squishy approach of the Seventh Circuit to the same issues in Chicago.
Three articles in one here today because yesterday’s decision by the Ninth Circuit in Oregon v. Trump packs a powerful punch.
In a 2-1 per curiam opinion, the Majority lambasted Portland District Judge Immergut in for claiming she gave “great deference” to the President’s factual determinations for activating the Oregon National Guard, but she hadn’t. In fact, she discounted the facts presented by the President, adopted her own views as to the facts on the ground, and then then substituted her judgement for his on the question of whether the enforcement of immigration law in Portland was possible. The Majority Opinion is very fact driven and repeatedly makes the point that Judge Immergut ignored or downplayed the significant volume of evidence about how ICE operations were being impacted by rioters — including having closed down the ICE processing center in Portland for three weeks in June and July.
Judge Ryan Nelson wrote a concurrence that went one step further. He advanced the view that the earlier Ninth Circuit panel in Newsom v. Trump about the California National Guard deployment was wrong in concluding that the President’s decision to deploy National Guard troops was reviewable by the judiciary. Because another panel of judges had already decided that the President’s decision was subject to judicial review on a “highly deferential” standard, the Oregon case panel was obligated to follow it. But Judge Nelson wrote separately to lay out why, in his view, the historical record and prior Supreme Court decisions point towards a different conclusion, i.e., that Congress meant for the President’s exercise of authority under Sec. 12406 to not be subject to court scrutiny — but rather it is up to Congress to take steps to address Presidential abuses of that authority.
The opinion in the Oregon case shows in so many ways how — as I said in this earlier article on Sunday — the Seventh Circuit dodged the key questions that undercut Chicago Judge April Perry’s TRO about Chicago ICE operations that the Seventh Circuit allowed to stand. That Court turned a blind eye towards Judge Perry’s approach which mirrored Judge Immergut’s in Portland, and concluded that she was not “wrong enough” — in legal terms her factual findings were not “clearly erroneous” — to justify setting aside her conclusions that were substituted for President Trump’s judgements on the facts in Chicago.
The Unsparing Chastisement of Judge Immergut by the Ninth Circuit.
As noted above, the Majority Opinion leaves very little standing of Judge Immergut’s factual analysis she used to justify her decision blocking the federalization of the Oregon National Guard, and the deployment of any federalized National Guard to assist in the enforcement of immigration law in Portland.
