🚨Hearing in Newsom v. Trump re National Guard starts in ~15 minutes. I'll be live-posting in this 🧵. 1/
2/ Hearing starting:
Judge Preliminary Comments: Entered scheduling order directing file of briefs & appreciative of that. It is necessary to have briefing & I have always have done it, even though styled as ex parte, sufficient cooperation to allow complete record as possible given, important--issues significance, and urgency so I need to act expeditiously but takes into consideration the arguments of the parties. That's the fair way to do it and way I've done it over the year and parties have been extremely helpful in this regard.
Judge Preliminary Comments: Entered scheduling order directing file of briefs & appreciative of that. It is necessary to have briefing & I have always have done it, even though styled as ex parte, sufficient cooperation to allow complete record as possible given, important--issues significance, and urgency so I need to act expeditiously but takes into consideration the arguments of the parties. That's the fair way to do it and way I've done it over the year and parties have been extremely helpful in this regard.
3/ Judge: Asks to start w/ federal government & wants feds to address several issues: It seems to me that it is necessary to understand whether the president complied with the statute 10406, which has a number of requirements. When Judge acted on desire to nationalized California National Guard he sited this statute.
4/ Judge: If he didn't comply with statute, would you agree there is no authority to federalized national guard.
DOJ: Brett "shoemake" (sp?): Yes he complied.
Judge: If he didn't did he have authority?
DOJ: He would still have authority, nor would plaintiffs have right to relief. If he didn't comply with statute (a procedural requirement), he still had that authority.
DOJ: Brett "shoemake" (sp?): Yes he complied.
Judge: If he didn't did he have authority?
DOJ: He would still have authority, nor would plaintiffs have right to relief. If he didn't comply with statute (a procedural requirement), he still had that authority.
5/ DOJ: First sentence is the authority.
Judge: If he didn't satisfy those condition could he federalize?
DOJ: Likely Article 2
Me: This judge is being annoying. The DOJ is answering the question & judge keeps changing it.
Judge: If he didn't satisfy those condition could he federalize?
DOJ: Likely Article 2
Me: This judge is being annoying. The DOJ is answering the question & judge keeps changing it.
6/ Judge: I look at statute & his conduct to see if appropriate. I'll look at Article II. I did this morning: "Shall be the Commander in Chief, . . . and of the Militia of several states when called into service...." Statute speaks of calling into national service: Whenever & three conditions.
You argue non-justiciable to decide if three conditions met, because of discretion for judge to make determinations. (Non-justiciable means judges aren't allow to review & decide.)
You argue non-justiciable to decide if three conditions met, because of discretion for judge to make determinations. (Non-justiciable means judges aren't allow to review & decide.)
7/ DOJ: Yes, they are non-judiciable.
Judge: Statute "shall" we could agree means "mandatory. In this case, President directed Secretary of Defense to order Adjutant (sp?) General to turn over command to the president of the United States, because if federalized then President is commander-in-chief. And on that order itself Secretary of Defense said "Memo. for Adjutant General through the governor of California" I'm trying to figure out if something is through someone if it wasn't sent to him.
Me: Judge is like a bad preacher. I feel for DOJ attorney being forced to bite tongue and smile to let Judge preach.
Judge: Statute "shall" we could agree means "mandatory. In this case, President directed Secretary of Defense to order Adjutant (sp?) General to turn over command to the president of the United States, because if federalized then President is commander-in-chief. And on that order itself Secretary of Defense said "Memo. for Adjutant General through the governor of California" I'm trying to figure out if something is through someone if it wasn't sent to him.
Me: Judge is like a bad preacher. I feel for DOJ attorney being forced to bite tongue and smile to let Judge preach.
8/ Judge: It never went to him directly is that "through" because he got a copy? Or that he didn't need notice.
DOJ: Under California law is that the Adjutant General was given authority to do issue orders on behalf of the Governor. Doesn't say "by" or "with permission" the governor is a "conduit" for order.
Judge: Why even bother to put that language in the statute? Doesn't that assume there will be a discussion with Governor who was elected? And serves a political role which may want to express to the president.
DOJ: If Congress wanted consulting, or to object. There is no discretion given to the Governor. Governor is merely a conduit. When president makes decision, state's are subservient.
Me: Judge seems poised to rule Trump didn't call them up. Of course he might be playing devil's advocate.
DOJ: Under California law is that the Adjutant General was given authority to do issue orders on behalf of the Governor. Doesn't say "by" or "with permission" the governor is a "conduit" for order.
Judge: Why even bother to put that language in the statute? Doesn't that assume there will be a discussion with Governor who was elected? And serves a political role which may want to express to the president.
DOJ: If Congress wanted consulting, or to object. There is no discretion given to the Governor. Governor is merely a conduit. When president makes decision, state's are subservient.
Me: Judge seems poised to rule Trump didn't call them up. Of course he might be playing devil's advocate.
9/ DOJ: There are 2 steps. Once Trump issues order Trump becomes Commander-in-Chief. The second step: Dept. of Defense issued to Ajutant General who by California law issues through Governor. Recognition by chain of command that lawful & complied with it.
10/ Judge: I'd like to talk about justiciability. As I understand it, the President has enormous discretion to make decisions and judge you shouldn't get into it because Congress has said President makes this decision and not the Court to second guess. So I look in statute and it starts out with requirements that there be one of these things a) foreign nation invasion (not in issue).
DOJ: Is there an invasion. That is inherently political.
Judge: I don't need to go there because president didn't go there.
DOJ: If prong 1 is non-judiciable, likely that #2 and 3 aren't either.
Judge: It speaks to foreign nations, and because foreign affairs have different deference.
DOJ: Is there an invasion. That is inherently political.
Judge: I don't need to go there because president didn't go there.
DOJ: If prong 1 is non-judiciable, likely that #2 and 3 aren't either.
Judge: It speaks to foreign nations, and because foreign affairs have different deference.
11/ Judge: What I'm asking as to 2, "rebellion against the authority of the government of the United States".
DOJ: President is invoking both rebellion and a danger of a rebellion.
Judge: If he has complete discretion, there is nothing for me to do. Or is unable with regular forces to execute laws of U.S. what do you understand "regular forces," does that include LA police,
DOJ: Means everything other than state national guard.
Judge: Here's the thrust, these existed and therefore the rest flows. Does Court has any role to determine if these conditions existed. Gov't position is "no."
My question: What authority do you have?
DOJ: Take Care Clause--That is HIS, Trump's sole duty to Take Care to execute the law. Exh. 22-1, explains how ICE couldn't enforce.
Judge: You are saying the president acted on evidence, did he have to?
DOJ: No. Trump could merely reach that because he has sole authority to Take Care Clause.
Judge: Tries to make it sounds like Trump could just say it and that there is no basis to find it non-justiciable.
DOJ: Counters with SCOTUS precedent.
Me: Judge is so annnnnoying. DOJ is trying to make an alternative argument and juge won't let him.
DOJ: President is invoking both rebellion and a danger of a rebellion.
Judge: If he has complete discretion, there is nothing for me to do. Or is unable with regular forces to execute laws of U.S. what do you understand "regular forces," does that include LA police,
DOJ: Means everything other than state national guard.
Judge: Here's the thrust, these existed and therefore the rest flows. Does Court has any role to determine if these conditions existed. Gov't position is "no."
My question: What authority do you have?
DOJ: Take Care Clause--That is HIS, Trump's sole duty to Take Care to execute the law. Exh. 22-1, explains how ICE couldn't enforce.
Judge: You are saying the president acted on evidence, did he have to?
DOJ: No. Trump could merely reach that because he has sole authority to Take Care Clause.
Judge: Tries to make it sounds like Trump could just say it and that there is no basis to find it non-justiciable.
DOJ: Counters with SCOTUS precedent.
Me: Judge is so annnnnoying. DOJ is trying to make an alternative argument and juge won't let him.
12/ Newsom's Attorney up.
Judge: Address DOJ's points.
Judge: Address DOJ's points.
13/ Newsom: Statute wasn't complied with. First, those none of the factual predicates exist and second they weren't issued through the governor, so not lawfully federalized. Statute sets 3 factual and courts look at that all the time. So court can decide. Second half looks speaks of discretion to President because it says in number "he sees fit."
Judge: "Whenever"...it President has completed discretion, why not say when President "finds".
Me: Opps, Judge notes it does the third prong does to show there is discretion where President "finds."
Judge: I find justiciability question interesting. President is limited in his authority. That's the difference between a president and King George.
Judge: "Whenever"...it President has completed discretion, why not say when President "finds".
Me: Opps, Judge notes it does the third prong does to show there is discretion where President "finds."
Judge: I find justiciability question interesting. President is limited in his authority. That's the difference between a president and King George.
14/ Judge: What is your response when it is urged upon me.
Newsom: 3 responses besides I agree with everything you said.
Me: Yeah, no kidding.
Newsom: 3 responses besides I agree with everything you said.
Me: Yeah, no kidding.
15/ Newsom: The version of executive power to police civilian city is breathtaking and dangerous conception of federal power. Statute is asking a factual decision and so a court can look at that.
Judge: If statute says president can appoint when there's a vacancy, can president merely declare a vacancy. If he finds there's a rebellion there is a rebellion. I try to distinguish what a monarchy does.
We live in response to a monarchy.
Line-drawing is necessary.
Me: This is ridiculous. If judge wants to reach a decision, he needed to allow DOJ to make alternative argument that facts met but Judge cut him off.
Judge: If statute says president can appoint when there's a vacancy, can president merely declare a vacancy. If he finds there's a rebellion there is a rebellion. I try to distinguish what a monarchy does.
We live in response to a monarchy.
Line-drawing is necessary.
Me: This is ridiculous. If judge wants to reach a decision, he needed to allow DOJ to make alternative argument that facts met but Judge cut him off.
16/ Judge: Posse commatatas (sp?) and Marines--Posse Act is a prohibition. You said Marines "might" do this, but there is no evidence they have done these things that are prohibited. And president when he evoked the authority, not invoking exception to Posse Act (the Insurrection Act). I don't understand how I can do anything about the Marines.
Newsom: We understand Marines will be replacing National Guards. That 700 Marines are made ready that is enough to show injury is certainly impending.
Judge: Seems to me that circumstances and court orders will dictate how people will behave. So whatever order I issue, I assume will be followed and that might impact conduct in the future. But I have a hard time reaching out saying you can't do this or that. Seems speculative and a view of future and not what is presently done.
Newsom: There is a PCA (Posse Act) violation as to Guard right now. It is enforcing the law right now as they are federalized. Regardless of whether federalized was lawful it is unlawful under PCA.
Judge: I am prepared to answer whether Guard is properly federalized.
DOJ: Newsom wants a TRO to go outside of federal property to participate in immigration raids. 22-4 Declaration under orders simply to protect federal property and federal personal) Paragraph 7: Limited to those operation. NOT performing law enforcement or other functions. What they want to enjoin is leaving federal buildings to participate in ICE raids.
Judge: Strikes me facing issues fully briefed and argued that I must make a decision whether properly federalized.
DOJ: If it is a violating, it is a procedural way, we can send the papers to fix it.
Judge: If it is unauthorized, we can't overlook. If you start looking at "where we go from here" court becomes almost a party. I have to make sure laws are faithfully executed. (Me: No, that is Trump's duty.)
Depends in part on the situation on the ground.
Newsom: We understand Marines will be replacing National Guards. That 700 Marines are made ready that is enough to show injury is certainly impending.
Judge: Seems to me that circumstances and court orders will dictate how people will behave. So whatever order I issue, I assume will be followed and that might impact conduct in the future. But I have a hard time reaching out saying you can't do this or that. Seems speculative and a view of future and not what is presently done.
Newsom: There is a PCA (Posse Act) violation as to Guard right now. It is enforcing the law right now as they are federalized. Regardless of whether federalized was lawful it is unlawful under PCA.
Judge: I am prepared to answer whether Guard is properly federalized.
DOJ: Newsom wants a TRO to go outside of federal property to participate in immigration raids. 22-4 Declaration under orders simply to protect federal property and federal personal) Paragraph 7: Limited to those operation. NOT performing law enforcement or other functions. What they want to enjoin is leaving federal buildings to participate in ICE raids.
Judge: Strikes me facing issues fully briefed and argued that I must make a decision whether properly federalized.
DOJ: If it is a violating, it is a procedural way, we can send the papers to fix it.
Judge: If it is unauthorized, we can't overlook. If you start looking at "where we go from here" court becomes almost a party. I have to make sure laws are faithfully executed. (Me: No, that is Trump's duty.)
Depends in part on the situation on the ground.
17/ Judge: I have to look at record and make a determination on record before me which is why I'm concerned about talking about the Marines. Because I'm not sure what they'll do.
DOJ: You are not merely asked to decide merits but to countermand the President's authority.
Judge: They are saying they will protect federal officials, but governor is in charge.
DOJ: Must balance equity. If you are going to enter TRO, make it a Preliminary Injunction and a stay pending an appeal for 48 hours.
Newsom: We don't have a position on TRO or PI, we don't object to a PI. We object to a stay pending of appeal, this is ongoing urgency. Docket 39-1 he claims it is domestic enforcement.
Judge: I will have an order out very soon, hopefully today.
DOJ: You are not merely asked to decide merits but to countermand the President's authority.
Judge: They are saying they will protect federal officials, but governor is in charge.
DOJ: Must balance equity. If you are going to enter TRO, make it a Preliminary Injunction and a stay pending an appeal for 48 hours.
Newsom: We don't have a position on TRO or PI, we don't object to a PI. We object to a stay pending of appeal, this is ongoing urgency. Docket 39-1 he claims it is domestic enforcement.
Judge: I will have an order out very soon, hopefully today.
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