Oregon Federal Judge Prevents The Federalized California And Texas National Guard From Assisting ICE Enforcement Operations.... Maybe.

This decision on shakier ground than her first TRO, which will be the subject of a Ninth Circuit oral argument on Thursday morning.

Before I start, I want to recommend to all the column written by Prof. Jack Goldsmith over at Executive Function on this subject. Prof. Goldsmith goes into more detail than I have on this subject, including a very important discussion of the Insurrection Act and how it might come into play here. I have an article started on the Insurrection Act — which I know well from the Oath Keeper trials — that I hope to publish later this week or weekend.

Prof. Goldsmith also covers the subject of the Ninth Circuit’s mis-application in its Newsom v. Trump decision of the Supreme Court’s 1932 decision in Sterling v. Constantin. I had included, but then deleted while editing, this issue with the Ninth Circuit’s application of Sterling in my first article on Monday concerning the TRO issued by an Oregon District Court Judge blocking the use of Oregon National Guard troops in Portland to assist ICE. I set forth below what I had first included but then deleted because I thought it was a confusing digression from the other points I was making about Judge Immergut’s TRO.

If you followed the news of Oregon District Judge Karin Immergut’s TRO on Saturday night blocking the “federalization” of the Oregon National Guard by SecDef Hegseth to have them assist ICE operations in Portland, then you are likely familiar with the hastily arranged proceedings Sunday night wherein she granted a second TRO ostensibly preventing the deployment into Oregon of National Guardsman from California, Texas, or any other state for the same purpose.

On Saturday night DOJ had immediately sought a Stay from the Ninth Circuit, but the TRO remained in place on Sunday. The Administration then announced plans to send Guardsman from other states to Portland in response to Judge Immergut’s TRO. It was reported that 100 Guardsman from California were already in Oregon before the second TRO, as they had been tasked to deploy there in order to train the Oregon National Guard as part of its preparations to assist ICE. It was also reported that Texas Gov. Abbott volunteered to send Texas Guardsman under the command of the SecDef to Oregon to serve in place of the Oregon National Guard while the case was pending.

Here is the text of the order Judge Immergut entered on the docket of the case on Sunday night after a short hearing on the Plaintiffs’ motion for a Second TRO against use of the California or Texas Guardsman:

This Court GRANTS Plaintiffs’ Second Motion for a Temporary Restraining Order 59 , and ORDERS as follows: Defendants are temporarily enjoined from deploying federalized members of the National Guard in Oregon.

“Federalized” members of the National Guard are considered part of the “active duty” military. That means the Commander in Chief has been blocked by a federal District Judge from deploying the armed forces as he deems necessary — because she thinks it is not necessary.

But, that’s not exactly what it means.

Donald Trump, as President, is the first named Defendant in the Complaint filed by Oregon.

An Article III Court — even the Supreme Court — cannot issue an injunction against the President in advance of him taking action. The seminal case on this question is Mississippi v. Johnson, an 1866 Supreme Court case involving an effort by Mississippi to prevent President Andrew Johnson from carrying out the Reconstruction Acts after the Civil War.

The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance.But courts can enjoin subordinate officials in the Executive branch from taking actions.

While Judge Immergut’s TRO does not apply to President Trump, it does apply to Secretary of Defense Hegseth, who is also named as a Defendant.

As a result, a District Judge — a creation of statute — has ordered the Secretary of Defense to disobey a directive from the Commander-in-Chief with regard to the deployment of military forces before that deployment has taken place. The SecDef cannot, without risking a contempt citation, order the already federalized National Guardsman from California and Texas be deployed to Oregon.

If only Jefferson Davis had thought of that, General Sherman would not have allowed to march to the sea.