My day got started with two wonderful friends, Jen Rubin and Norm Eisen, from The Contrarian, my favorite new media news source. The Contrarian’s tagline is “unflinching journalism in defense of democracy,” and they live up to that, every day.
We are all focused on the Supreme Court these days, and the question about whether that institution is finally prepared to take a stand, at least in defense of its own constitutional powers. Jen made an important point that has been getting largely overlooked, because it’s a bit of inside baseball among lawyers: On appeal, appellate courts are supposed to defer to a trial court’s factual findings. That’s because the trial judge is the one hearing directly from witnesses and taking in all of the evidence. Since they are closest to the ground, they are in the best position to determine the facts in cases like the posture the National Guard cases are in. Appellate courts look at legal rulings made by lower courts with fresh eyes, because they are as capable (some of those judges might say more so) of making those calls as their colleagues on the trial courts.
That takes us to the Portland National Guard lawsuit, which we discussed Sunday night and again last night. The Ninth Circuit ruled 2-1 in the administration’s favor, but it’s Judge Graber’s dissent that I’m still focused on and have been rereading. It seems to me that she starts with an analysis that should end the case in the state of Oregon’s favor (she starts at page 58 for those of you who’d like to read for yourselves). It’s about the facts as the trial court found them:
“In the weeks preceding the President’s September 27 social media post proclaiming that Portland was “War ravaged” and authorizing Secretary Hegseth to deploy federalized Oregon National Guard members, demonstrations in Portland were non-disruptive and small. Notwithstanding the turbulent events that had occurred several months earlier, the record contains no evidence whatsoever that, on September 27, Immigration and Customs Enforcement (“ICE”) was unable either to protect its Portland facility or to execute the immigration laws it is charged with enforcing.”
In other words, Donald Trump is lying when he says he needs National Guard troops on the ground to protect federal facilities from rampant crime. “The record contains no evidence whatsoever” of that, Judge Graber writes. That’s the district court’s factual finding based on the evidence. And that should end the Trump administration’s aspirations because it means they have no rationale for federalizing National Guard troops and deploying them on American streets.
Jen, Norm, and I discuss the implications of that situation and other issues, and also my book, Giving Up Is Unforgivable: A Manual For Keeping A Democracy. If you haven’t picked it up already, I hope you will! In addition to being a good read for the times we are living through, I was told this morning that Eric Trump’s book is still on top of the nonfiction bestseller list. Maybe we can help change that next week?
We’re in this together,
Joyce
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