andrewtorrez.bsky.social
HLS '97, ex-BigLaw
Practicing lawyer and cohost of the @lawandchaospod.bsky.social podcast with @lizdye.bsky.social
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Zero chance this thing could go to trial, IMO. For more:
https://bsky.app/profile/andrewtorrez.bsky.social/post/3lrijg62zo22e
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https://bsky.app/profile/andrewtorrez.bsky.social/post/3lrijg62zo22e
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gotta love being on the phone such that I can manage to misspell "as"
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Fortunately you’re in one of the most beautiful places on earth to console you through the cold
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We've all had to learn way too much in the era of Trump about people and things no one should have had to learn
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Yes, that's the one
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35/ AG is now trying to rehab the relief they've sought. Breyer seems inclined to paper over it.
AG refers the court to Doc 39-1 photo of ICE, says "if that's not a violation of the Posse Comitatus Act, nothing is."
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34/ DOJ also asks for a stay pending appeal; no surprise, AG opposes that. (And Breyer will not give it.)
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33/ *** DOJ asks for the following additional relief if (as seems likely) Breyer issues a TRO
1) convert to a preliminary injunction (unsaid: so that it's immediately appealable) - "there's been full briefing on this already"
AG says no objection, which, IMO is a HUGE mistake
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32/ Shumate: "You're being asked to issue extraordinary relief. It would reverse the President's military judgment. It would put federal officers and property at risk."
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31/ Breyer: "I think if I do find that it was unlawful, whatever the options are, you still have. I don't know what you're going to do."
Essentially he's saying that he can order injunctive relief and not constrain the powers of the President.
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30/ Shumate says: if you think the 10 USC 12406 order was unlawful, give us the opportunity to cure. We'll reissue a different order, "white out" the offensive parts.
Breyer seems skeptical of that, too. "I have to make an initial determination as to whether it was lawful."
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29/ ...but that's not how this was teed up by the state. I think that's because they waited until Monday to file suit & Tuesday to seek a TRO. Had they filed suit on Saturday, it would preserve the status quo to invalidate the entire Title 10 order.
Breyer asserts that he can enjoin the order.
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28/ Shumate makes his best argument & it's one I had planned to discuss on the show tomorrow.
Calif has NOT sought injunctive relief invalidating the federalization order in its entirety. They've sought to preclude them from violating the PCA.
Breyer seems willing to invalidate the entire order...
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27/ "...until it becomes real."
AG: 1) There's a PCA violation as to the Guard RIGHT NOW. It's not disputed they're out there enforcing the law and they're federalized. They're no different than the 101st Airborne right now.
Breyer: If federalization was unlawful, doesn't that moot it?
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26/ Breyer: "I assume court orders will be followed. And that may well impact decisions in the future. I just have a hard time ordering them to follow the PCA because I'm afraid they MIGHT violate it. I just sort of don't think that's my business. I don't think I get into that kind of analysis..."
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25/ "So, what can I do about the Marines," asks Judge Breyer?
Calif AG's best argument here is to point at the Trump administration's public statements.
Breyer is skeptical of granting injunctive relief on the basis of political statements. Suggests that a court order might get admin to behave.
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24/ We're now moving on the Posse Comitatus Act. "We all know the PCA prohibits. It says you can't substitute yourself in for law enforcement."
Breyer pushes at AG's weakest point: you've argued they *might* violate PCA, but where's the evidence that they have? Trump hasn't invoked Insurrection Act
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23/ "I'm just trying to figure out where the lines are drawn," says Breyer, after a rather lengthy exposition on the fact that we're not a monarchy; we were formed in RESPONSE to a monarchy.
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22/ Breyer agrees & uses an example of a nonjusticiable Presidential power - to fill an executive branch vacancy.
Breyer asks, essentially, what if the President declares a vacancy when there isn't one. Must the court really sit back and pretend there is? "Is a rebellion whatever he says?"
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21/ AG: "They're saying the President can federalize the National Guard and deploy it in a city by fiat. That's a staggering assertion of executive power. I think it's striking that the gov't stood here and told you they could make NO findings & that would be a lawful exercise of power."
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20/ AG: "The statute sets out three factual predicates. It's up to the court to review whether those facts exist. The standard in THEIR OWN CASE [Baker v. Carr] says that a statute is nonjusticiable only if no judicially manageable standards exist."
He's right.
scholar.google.com/scholar_case...
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19/ Now we're on the California AG's argument.
This is what real law sounds like:
"You asked two questions, Judge Breyer. Was the statute properly invoked, and if not, is there any other basis for federalizing the national guard? The answer to both questions is no."
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18/ Breyer grilling Shumate as to why the DOJ provided the evidence of a rebellion in its filings (the stuff about ICE being unable to carry out raids) if the question is non-justiciable.
"Why should I look to your evidence if I can't look at the basis for those findings?" asks Breyer.
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17/ "What authority do you have for the proposition that those prongs are nonjusticiable?"
Shumate: "I start with the 'take care' clause."
This is an exceptionally dumb argument. The take care clause is TEN WORDS long. It does not permit federalization.
constitution.congress.gov/browse/essay...
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16/ "What I'm facing today is (2) and (3)."
Shumate will not parse out whether Trump is relying on prong (2), insurrection - or prong (3), unable with the regular forces to execute the laws of the United States.
Colloquy now on what "regular forces" means.
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15/ Shumate's argument is essentially that because that first prong is nonjusticiable, that's "strong evidence" that the other prongs are not justiciable either.
I do not think "invasion" is nonjusticiable - meaning it's whatever the President says it is. It doesn't seem Breyer does, either.
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14/ Breyer is now going through the three preconditions of the statute. Shumate, incredibly, is arguing that the first prong (whenever the US is invaded by a foreign nation) is relevant here.
"Even though the President hasn't invoked it?" asks Judge Breyer, incredulously.
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13/ 🚨
Breyer seizes on the Trump administration's lie that Trump talked to Newsom "Friday night" (6/6) about federalizing the National Guard after Shumate repeats it.
Breyer: "Do we have a record of what was said on that call?"
Shumate: "Well, no, but... they certainly talked about the situation"
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12/ Breyer gets Shumate to admit that their view is that the minute the President issues a proclamation -- not delivers one, whether through the governor or not, but *issues* it -- then the President becomes commander-in-chief of the National Guard as well.
(That's insane.)
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11/ Shumate argues that the President is commander-in-chief, and there's only one, so what's with all this second-guessing...
Breyer: "He's not the commander-in-chief of the National Guard, though! He can *become* it, but the question is how."
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10/ DOJ's argument is that "through" in 12406 renders the governor a mere "conduit" of the President's orders, and so it doesn't really matter what happened. Newsom wasn't entitled to object, "they don't have to go to Camp David to persuade him."
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9/ Breyer: "If that's so, why have that language in the statute at all?"
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8/ Breyer seems... more than a little skeptical of the argument that it went to the adjutant-general THROUGH the governor because the adjutant-general can act on behalf of the governor.
Shumate: "I think there's no doubt that Gov. Newsom was aware of this order." Says doesn't require his approval.
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7/ "Is it your argument that so long as Governor Newsom gets a copy, it's 'through' the governor?"
Shumate: "A key missing piece here is that under CA law, the adjutant-general issues orders on behalf of the governor."
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6/ "...and I'm trying to figure out how something is THROUGH someone if you didn't send it to him.
The factual record is that it was sent to the adjutant-general and THEN the adjutant-general sent it to the governor.
And your argument is that went "through" the governor.
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5/ Breyer: "As I understand it, what happened in this case is that the Secretary of Defense sent out orders to the adjutant-general of the National Guard, and on that order itself -- because you rely on it -- it says 'memorandum for adjutant-general of the National Guard through the governor of CA'"
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4/ With that preliminary legal threshold out of the way (despite Shumate's hedging), Breyer cuts to California's best argument: that 12406 requires that federalization orders "shall be issued through the governors of the States." Emphasizes shall.
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3/ Breyer: "If you can point me to something in this little book, the Constitution of the United States, that lets the President do this, please let me know!"