🚨LIVE COVERAGE here of Preliminary Injunction hearing before Judge Breyer on Newsom's lawsuit to commander National Guard from Trump. Trump Administration had requested stay of proceedings pending 9th Cir. decision but Breyer refused. 1/
2/ Breyer claimed facts on ground and changes would be relevant to PI hearing. Watch for him to sidestep 9th Cir. slap down by framing changes on ground as so substantial that no matter how much deference Trump gets he couldn't federalize troops.
3/ Hearing was suppose to start at 10 PT. Hasn't started yet. Here's link as DH has me picking up a plumbing part so I might not be able to cover depending on when it starts. (At least it's at an old hardware store which has new old stock--which I love--not Lowe/Home Depot.
4/ Actually starting momentarily...crowd is flocking courtroom doors.
5/ You can access here: cand.uscourts.gov/judges/breyer-…
6/ Hearing starting and attorneys providing appearances.
7/ Breyer: Everyone had a late night. Let me review where we are as that informs where we go. Court granted TRO and 9th admin. stayed and then stayed pending appeal. In order 9th cir. is an effectively PI and thus it has appellate jurisdiction. I'm a district court my decisions are reviewed by 9th, just as you can't ignore my decisions I can't ignore 9th Cir. Issue is precisely "how to do that." Did not challenge posse comatatis...B/f d.ct. Plaintiff argued certain points violate posse commatis, 9th cir. said disputes are not before us. It is not clear to me that the 9th Cir. stay divests this court per to grant/modify by posse commatiatis (sp?), d.ct. has authority to modify. Asks for briefing on whether to modify injunction under posse commatatis by June 23 (I missed that was it ). Depending on what you say, I'll decide what to do next.
Me: Holy CRAP he's going to do posse commatatis.
Me: Holy CRAP he's going to do posse commatatis.
8/ Newsom Attorney wants to speak.
Judge: Question is what to do re posse commitatus.
Newsom Attorney: We believe another issue is live, which is the length of federalization.
Judge: TRO ends in 14 days. "That's the difference."
Me: No, that's only ONE difference.
Judge: Now that has been converted to PI and so I don't have jurisdiction over PI, the 9th cir. does. You're asking what is duration of National Guard. I had understood nationalized for 60 days.
DOJ: 60 day time limit, but with flexibility for that time to change, or at the discretion of Secretary of Defense.
Newsom Attorney: Because it is renewable, we believe another issue is when it should end. We also want court to issue the duration of the order.
Judge: You can address that in your briefing.
He said sorry to ruin peoples' weekends so I take it briefing is due on Monday.
Judge: Question is what to do re posse commitatus.
Newsom Attorney: We believe another issue is live, which is the length of federalization.
Judge: TRO ends in 14 days. "That's the difference."
Me: No, that's only ONE difference.
Judge: Now that has been converted to PI and so I don't have jurisdiction over PI, the 9th cir. does. You're asking what is duration of National Guard. I had understood nationalized for 60 days.
DOJ: 60 day time limit, but with flexibility for that time to change, or at the discretion of Secretary of Defense.
Newsom Attorney: Because it is renewable, we believe another issue is when it should end. We also want court to issue the duration of the order.
Judge: You can address that in your briefing.
He said sorry to ruin peoples' weekends so I take it briefing is due on Monday.
9/ Final Thought: Judge Breyer is going to hold Trump is violating Posse Comitatus Act, but wants to pretend he is being open minded so is asking parties to brief whether he has jurisdiction to do so.
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