10-7-25 - 8am - How Can A Judge Stop the President

Episode Transcript

Speaker 1 (00:00):
When they sent National Guard or federal troops into Alabama,
did they have to ask Governor George Wallace's permission first?
What's going on here.

Speaker 2 (00:20):
Question?

Speaker 3 (00:23):
I don't know the answer to that question, and it
could be, as I'm trying to think of all the alternatives.
I don't know that Kennedy sent in Alabama National Guard.
He may have sent in some other state national Guard. Remember,
the statute says that whenever, and in this case it's

(00:48):
paragraph three, whenever the President is unable with the regular
forces to execute the laws of the United States, the
President may call into federal service members and units of
the National Guard of any state in such numbers as
he considers necessary to repel, the execute or to execute

(01:11):
those laws. Orders for those purposes shall be issued through
the governors of the states, not that state of the states,
or in the case of the District, through the Commanding
General of the District of Columbia National Guard. So interesting

(01:35):
historical questions. I'd never thought about that. I'll now I
gotta make a metal note to go look that up,
because I can't imagine that George Wallace would have acceded
to the deployment of national guards to stop him although
you know, he probably wanted the confrontation. So George Wallace
wanted that confrontation, so he indeed would have acceded to

(01:58):
the President's requests to activate the guard because then he
got his photo up, which is what he wanted. But
it's a great question. It's a great historical question that
I never thought about. Let's go back to the question
about Wait a minute, this is as I described an
Article three judge, and you have over here the commander

(02:20):
in chief under Article two exercising his constitutional discretion. Yes,
let me see if I can describe it again, because
as I said, I wanted to make a point that
I think is crucial to understand. A federal district judge,

(02:41):
an Article three judge is evaluating. In other words, they
have in front of them, they have a case that
involves the discretionary decision making of executive branch of with

(03:01):
regard to how they carry out their duties. So when
they're making that decision or evaluating the decision making whether
it's constitutional or not, that Article three judge has the
entire spectrum of judicial authority in play, because under Article three,

(03:24):
Congress has established these trial courts, and they have established
their jurisdiction, and their jurisdiction is all encompassing. In fact,
there's something called which shows you how all encompassing it is.
There's something called diversity jurisdiction. So that if if I

(03:47):
have a dispute and I live in Colorado, and I
have a dispute with a friend that lives in Texas,
we can bring that law suit in a federal district
court in either Colorado or Texas. Now, which were those
two applies. Depends on a whole host of circumstances which

(04:09):
are not important here, But that's called diversity jurisdiction. So
my point is Congress has given them wide discretion to
answer these federal questions, in this case a federal question.
But here's where I think he gets interesting when a

(04:31):
federal district judge, because remember they're a creature statute. They
only exist because Congress has given them that position. Congress
established the Let's take Colorado for example. Colorado is one
federal district. I don't know why I think we should
be a couple, but we're one. So we're one district.

(04:54):
For example, I think that we ought to have the
Colorado District of pretty much kind of front range and
then have a federal district court, say somewhere else in
oh I don't know, put it in Glynwood Springs or Pueblo,
and it we cover the entirety of the state. Now,
geographically that might be a little difficult because it's quite

(05:17):
a ways from say Lineman to Pueblo or Glenwood Springs
to Pueblo. That's that's quite a halt. But nonetheless, I
think population wise, and because of the way we're constructed,
we ought to be more than one federal district court,
but nonetheless we are. When a federal district judge begins

(05:39):
to substitute their judgment for that of the judgment of
the president, which is the executive branch, which is a
constitutional office which has independent authority to interpret the Constitution
and independent authority to interpret the statute to pass by Congress,

(06:01):
that single functionary of the judicial branch is now navigating
and entering the waters of separation of powers. In other words,
she's stepping on the authority of the president to make
a independent decision about deploying the National Guard, which the

(06:26):
statute my Congress has given him the authority to do.

Speaker 2 (06:31):
So.

Speaker 3 (06:31):
To put it in very general, Layman's terms what she
ought to be doing on looking at is not whether
she likes what he's doing, whether she thinks what he's
doing is necessary or not, but simply does that statute
does Section twelve four oh six of Title ten authorize

(06:58):
the president to do what he's doing. And that section
says that, now, remember, there are three instances. We're being invaded,
we're in danger of invasion by a foreign nation, or
there is a rebellion or the danger of a rebellion
against the authority of the United States, which could be

(07:18):
foreign or domestic. Suddenly, let's just say the Proud Boys
have garnered her. You know, they now have five million members,
and they're starting an uprising, a rebellion against They have
decided that they are going to rebel against the United States. Well,
then clause two of section twelve four h six that

(07:41):
might come into play, But neither one of those are
in play here, Watson play here is simply section three.
Whenever the President is unable with the regular forces to
execute the laws of the United States, he can't. He
may call into federal service members and units of the
National Guard of any state in such numbers as he

(08:03):
considers necessary to repel or to execute those laws, and
the orders for those have to be issued through the
governors of the state. I don't know this for a fact,
but I think I heard yesterday when I was doing
show prep that Greg Abbott had offered the Texas National
Guard to go to Oregon, which happens lots of times.

(08:26):
National Guards will go to other states. So Abbot has said, hey,
if you want to send me the order, then I'll
activate us. And if let's go back to the George
Wallace example. And again, we don't know the historical facts.
At least I don't know the historical facts. I'm very
curious about them, but I don't know them right now.

(08:49):
If Kennedy's going to send him the National Guard, although
I think he actually sent in federal troops. But again,
isn't it interesting how we kind of know generally that, oh,
Kennedy sent troops in to enforce the segregate the the
laws against segregation. I thought he sent regular troops, which

(09:11):
he may have. But if he sent National Guard, Walls
could have gaven approval approval for that because politically he
thought it would be to his advantage. Or he could
have sent the Guard from a neighboring state, or he
could have sent federal troops, because when the president is
unable with regular forces to execute the laws of the

(09:32):
United States, then he can then he can activate the Guard.

Speaker 2 (09:36):
So my point being to.

Speaker 3 (09:37):
Answer your question earlier, this judge is wading into waters
in which she has no authority to wait into right now.
And that's because, as I pointed out with the Ninth Circuit,
the Ninth Circuit, in the original three judge panel opinion said, look,

(09:58):
the plaintiffs, the State of California, concedes that the National Guard,
if validly federalized, indeed are able and lawfully allowed under
statute to go protect federal personnel and property. The State
of California admitted that, and the District Court said the
plainest State of California presented zero evidence at the hearing

(10:22):
for the temporary restraining order that the National Guard members
were engaged in any other activities other than that allowed
under sub paragraph three of Section twelve four oh six.
So this is the case that the Oregon judge is

(10:42):
relying on. So let me give you a couple of
quotes throughout the opinion from Newsom versus Trump. That's the
Ninth Circuit case that arose out of the San Francisco judge.
This is the language that the Morrigan Judge had to
take into account when she came to her decision. Writing

(11:05):
her opinion. For example, the Ninth Circuit said, we are
persuaded that under long standing President interpreting the statutory predecessor
to Section twelve four oh six, our review of that
decision must be highly deferential. In other words, the Ninth
Circuit said, you know what, the statute's pretty clear, and

(11:29):
the discretion about whether to activate the Guard to enforce
the laws, that's up to the president. We don't have
any We don't have any discretion to interpret that. That
discretion is given to the President by Congress. She ignored
that The Ninth Circuit also said the Supreme Court interpreted

(11:55):
the Militia Acts seventeen ninety five and Martin, which arose
out of President Madison's decision to call the New York
Militia into federal service during the War of eighteen twelve. Mott,
a New York Militia man, refused to turn up for service.
He was court martialed and fine. Mott then brought an
action arguing that President Madison's ordering of the federalizing the

(12:15):
militia was invalid. The Supreme Court rejected that argument, and
the Supreme Court began by explaining that the Constitution gave
the calling fourth power to Congress, but Congress confided that
power to the presidency when the exigency of an invasion
has arisen. So even before Section twelve four h six

(12:36):
appeared in statute, the general law was the President can
call up the National Guard to repel an invasion the
militia in this case, and the Supreme Court in that
case back in seventeen ninety five recognized that they had
to do it. The Court recognized the delegated power was

(12:59):
a limited or. But if it was limited, is the
President the sole and exclusive judge about whether or not
in that case an invasion was occurring or rebellion was occurring.
The Court answered that question by simply saying, this, the
authority to decide whether the exigency, the rebellion, or the

(13:22):
invasion has arisen belongs exclusively to the President, and that
his decision is conclusive upon all other persons, and judge,
you happen to be all other persons, neither me, nor

(13:43):
you nor that judge, because that's a power that belongs
exclusively to the president. That's where to go back to
your question. I want to keep going back to that question,
because I think it's a great question. This is where
I think this Article three judge has overstepped her bounds.

(14:04):
She's inserting her own for lack of a better way
to describe it. She's acting is she's the president. She's
acting as if the discretion to call it the National
Guard is up to her. That's not up to her.
And there is case after case after case that says no,

(14:24):
that power has been given to the president. I'll give
you another example, eighteen forty nine. You don't get this
kind of stuff anywhere else. In Luther versus borton the
president's ability ability to call forth the militia to offer
that protection from the Militia Act of seventeen ninety five,
relying on Martin, this is the Ninth Circuit, The Ninth

(14:47):
Circuit said in their opinion relying on Martin, the court
explained that the seventeen ninety five Act gave the power
of deciding whether the exit g exigency had arisen to
the president. The court made clear that the president's authority
was preclusive, meaning to the exclusion of anybody else's authority.

(15:11):
It's the president's.

Speaker 2 (15:15):
Now.

Speaker 3 (15:17):
The problem with the approach adopted by the Ninth Circuit
is that three judge.

Speaker 2 (15:23):
Panel they knew the outcome when.

Speaker 3 (15:26):
It charted the path as I just described it as
how to as to how it would reach the outcome,
and all the judges agreed, including a Biden appointee, that
Judge Bryer, the judge in San Francisco, had overstepped his authority,
regardless of whether the standard was no judicial review, which

(15:48):
I believe is the standard, or highly deferential judicial review,
which I don't believe is the standard. The Supreme Court
I hadn't answered that back in seventeen ninety five. They
answered it again in eighteen forty five. So, rather than
follow a long life of Supreme Court cases that suggested
the president's decision was preclusive and was conclusive on all

(16:11):
other persons, the Ninth Circuit nonetheless decided that it we
cannot concede it every at a very early stage. In
other words, they went ahead and reinstated the stay so
they could review the case all eleven judges and come
up with their own decision. Now, I think in their opinion.
They have kind of telescope what their opinion is going

(16:33):
to be. So why would the Ninth Circuit do that?
Because the Ninth Circuit, the most liberal circuit in the country,
wants to even though they may think about how stupid
this is. The Ninth Circuit said, Hey, the three judge panel,

(16:54):
you lifted the temporary restraining order, but we're going to
reimpose it until we have a chance for all eleven
judges to look at it. Even though in our opinion
we're kind of telling you that we're probably gonna lift
it again. Why would judges do that because they want
to stole Trump and Trump can't do anything except appeal

(17:16):
it to the Supreme Court. But he can't really appeal
it to the Supreme Court until they issued their decision.
Because to appeal to the Supreme Court now, at least
I would argue if I were California, hey, they haven't
made their decision. There's nothing to appeal yet.

Speaker 2 (17:30):
This is called lawfair, kids, This is lawfair, and this
is what.

Speaker 3 (17:35):
Trump is facing. And it's absolutely well, it's coffee to
the republic.

Speaker 2 (17:43):
Was it a one hundred and first dereborn is supposed
to be in that and what the Alabama thing, I think, Oh,
I don't know.

Speaker 3 (17:52):
I'm confessing complete ignorance. The only thing I recall about
the the segregation cases in Alabama is that George Wallace
refused Bobby Kennedy went to his brother and said, we
can't let this stand, and troops, National Guard, federal otherwise,

(18:15):
I don't know troops were sent, and we have all
those iconic photos of the troops opening a corridor and
walking those kids up the steps and basically reading an
order to George Wallace who stepped aside, and the kids
walked in.

Speaker 2 (18:35):
And Forrest Gump was there, and that's all that's right,
And Forrest Gump was there. I totally forgot about that.
In fact, I guess.

Speaker 3 (18:41):
To find out what troops were really there, I should
go home and watch Forrest Gump again.

Speaker 2 (18:47):
Yeah, okay, that's that's where I get my history. Where
do you get yours?

Speaker 3 (18:53):
Now, So now that you understand, and if you don't understand,
now the background of all this case going on in Portland,
and by the way, just to give you a little warning,
we're gonna talk about law Fair again in the next
hour or maybe starting in this hour, depending how quickly
I can get through this, but I want you to

(19:14):
understand why. Now, remember this judge in Oregon is a
Trump appointee, which once you put on that black robe
and you know, oh yes, oh yes, and you know,
hear you, hear you, all rise. You know, the honorable
such and such Michael Brown's court for such and such
district is now in session. All rise, And it's a

(19:34):
pretty powerful thing. It's pretty powerful, and I think she
likes it. This judge's opinion, the Oregon judge's opinion, simply
rights into that outcome, by which I mean she simply
took everything that the Ninth Circuit opinion concluded, that is

(19:55):
the situation in California, and she concluded that Portland fall
within all the same parameters of that narrow scope of
judicial review provided. And then she just substituted her judgment
for that of the President of the United States, where
she disagreed with that judgment.

Speaker 2 (20:15):
This is where.

Speaker 3 (20:18):
John Roberts, this is this is why John Roberts and
the US Supreme Court has once but two, three, four,
five times, however many times it takes, has got to
slap down these district court judges and these damned temporary
restraining orders. It's simply out of control. Now interesting, it

(20:43):
at least interesting to me. Note the time between the
government's filing for an application for stay in the California
case and the issuance of the decision on that application
in California was nine days based on a Supreme Court

(21:03):
decision that is.

Speaker 2 (21:04):
Two hundred years old.

Speaker 3 (21:07):
Judge Immigrant the Oregon judge basically said, hold my beer.

Speaker 2 (21:13):
Let me explain why.

Speaker 3 (21:15):
The complaint and the motion for the temporary restraining order
was filed by the state of Oregon on September twenty nine.
It was originally assigned to a different Oregon District judge,
but that judge recused himself.

Speaker 2 (21:31):
You want to know why.

Speaker 3 (21:33):
I know that we sometimes look at these judges and
think they're all corrupt, They're all against Trump Trump, they
all have conflicts of interest, and nobody will do anything
about it. Will be prepared to be shocked. When the
complaint and motion for the restraining order was originally filed

(21:53):
by the state of Oregon on September twenty nine, it
was assigned to a different Oregon federal District judge, but
that judge he recused himself.

Speaker 2 (22:01):
Do you know why because his wife is.

Speaker 3 (22:03):
A Democrat member of Congress who has publicly stated out
and opposed publicly the use of National Guard troops to
assist ice. Now you might say that, well, Dub Brown,
that's obvious he should have recused himself. I would agree, duh,
he should have recused himself. The shocking thing to me

(22:26):
is he actually recused himself. We have a judge who
actually said, oh, this is going to create an appearance
of a conflict of interests. So I would say, hey,
all you judges in New York, look what they do
in Oregon. They're concerned about the appearances of impropriety. They're

(22:46):
concerned about the appearances of a conflict of interests, even
just even if it really.

Speaker 1 (22:51):
Is or not.

Speaker 3 (22:52):
They're concerned about the appearance of a conflict. So they
recuse themselves. Can we get a golf clap for this judge,
the judge it was originally assigned to, thank you.

Speaker 2 (23:07):
That's about what they deserve too.

Speaker 3 (23:10):
So then the case gets reassigned to this judge immigrant
on October two. The prior judge had given the government
until October two to respond to the State of Oregon's
request for a temporary restraining order, and had scheduled a
hearing for October third, with October one and two being

(23:32):
the first two days of the government shut down. So
what did this judge? Du Judge Immigrant conducted the hearing
on the temporary restraining order as scheduled on October third.
She then published her opinion in order granting the tro
one day later on October forty eight, on October four,
which is less than forty eight hours from getting the

(23:55):
case to considering the evidence and then writing a thirty
one page of opinion that makes hard findings a fact
during the government shutdown. Wow, I'm not saying she should
consider who appointed her, but me considering who appointed her,

(24:19):
she really has and I can't say it on there,
but she really has a She has a you know
what for Donald Trump. For some reason, the Ninth Circuit
judges took nine days from start to finish in the
Newsom case out of San Francisco. Well, they just much

(24:41):
must be a bunch of lazy bums. She took a
day less than forty eight hours. Now, the evidence that
formed the basis of her findings from three days ago
a collection of affidavits, almost all of which came from
the State of Oregon itself no opportunity to cross examine them.

(25:06):
She gave the government three days from September twenty nine
to October two to obtain and submit counter affidavits to
this request for a temporary restraining order, and also only
three days to oppose affidavits it had never even seen yet.

Speaker 2 (25:25):
Yet.

Speaker 3 (25:26):
Her opinion several times references what she saw as a
one sided presentation of facts in the record before her,
and concluded that there was not a sufficient colorable basis
to invoke Section one two four oh six, and the
various statements by the President himself, including his social media posts,

(25:47):
were not quote conceived in good faith or within a
permitted range of honest judgment. Holy cow, This woman doesn't
give them time to look at the affidat Davids to
oppose the affe of Davids, and then concludes that there
was not a sufficient basis to invoke this section that

(26:08):
authorizes the President to exercise his discretion to order up
the National Guard. She actually called President Trump a liar
in his comments about Portland. That doesn't have anything to
do with anything. None of the passages out of her

(26:29):
opinion are absolutely unbelievable. She wrote that after June twenty
five twenty twenty five. However, their protests were generally peaceful
in nature, with only sporadic incidents of violence and disruptive behavior.
By late September, these protests typically involved twenty or fewer people. Here,

(26:56):
give me twenty backcrap, crazy people.

Speaker 2 (27:01):
Let me get them, oh, I don't know, malotov.

Speaker 3 (27:03):
Cocktails, baseball bats, gas masks, any number of things, any
incendiary devices, and let me cut them loose because I'm
paying them, And let me cut them loose on downtown Denver.
Those twenty people can't well, they'd be most they'd be
generally peaceful in nature, there would only be sporadic incidents

(27:24):
of violence and disruptive behavior. But by golly went it
was sporadic. It was really disruptive. What's this woman doing
on the bench. I haven't had time to go through
and find out the history of this judge and why
they hell did Trump appoint her? She clearly has no

(27:48):
well I shouldn't say that, but based on this case,
she has no business being on a federal bench whatsoever.
Last week, on September twenty seventh, Trump posted on truth
social and that he was directing the Secretary of War
to provide troops to protect what he called war ravage

(28:10):
Portland from Antifa and other domestic terrorists, and authorizing full
force of necessary. So that's what he did now. Interestingly,
Hagsittt issued a memorandum authorizing the deployment and federalization of
two hundred Oregon National Guard service members. Tina Kotec, the

(28:31):
governor of Oregon, objected. Then, following federal officials arrests of
asylum seekers in Portland's immigration court in June twenty five,
protests broke out around the ice facility. The protests were small,
usually one hundred people or fewer, but were concentrated at

(28:52):
the ice facility and disrupted that ice facility. The protests, okay,
mostly peaceful, but there were some individuals who engaged in
an unlawful conduct. He had every basis in law to
do what he did. And if she objected, If Governor
Kotek objected, okay, why don't you call another governor, Call

(29:17):
the governor of Texas, governor of Florida. They got National
Guard troops. I bet they gladly said them.

Speaker 1 (29:25):
There was also federal troops in the sixty eight riots
in Chicago. I had a buddy who was in the
airborne and I think he was called up he was
I think he was sent there.

Speaker 3 (29:39):
Yeah, I'm already chasing one squirrel during the break. Don't
have me start chasing another squirrel during the break.

Speaker 2 (29:46):
I've got a.

Speaker 3 (29:46):
Query into Lexus Nexus about Kennedy's use of Title ten
during the Alabama Reintegration anti segregation cases, and it's whirling
around right now. And come up with that, and I'll
look at that during the break and bring that to
you next. But I'm going to go back to the
case in Oregon because there's still a couple of things

(30:10):
that I want you to understand. Everything I just talked about.
Judge Emmergut issued a second TRO that blocked the use
there are two temporary restraining orders here, the one which

(30:33):
I just talked about, which was federalizing the Oregon National Guard.
But then she did a second one, which is even worse.
She issued a second TRO blocking the use of the
California National Guard, which had already been federalized. And she
based that new ruling on the same reason she gave

(30:53):
in her opinion that there isn't a sufficient factual basis
for invocation of the use of the army National Guard
to assist ice enforcement operations in Portland. That's not for
her to decide. That's for the President to decide. But
two issues are still not addressed, and that is what

(31:15):
standing does California had to make any claim Since federalized
National Guard units become part of the active duty military
and are under the command of the Commander in chief
of the President of the United States of America, they
can argue all they want to about his decision, but

(31:37):
ultimately that's going to come down to the Supreme Court
upholding two hundred years of president that says that discretion
has been given to the president. You don't have You
are precluded from inserting your own opinion about whether that
is lawful or not. That's the president's decision. That's point
number one. But the second point is her prior restraining

(32:01):
order dealt specifically with the September twenty eight memo from
the Secretary of War that federalized the Oregon National Guard.
Her opinion dated October four doesn't address those issues at all.
And besides that, entering a temporary restraining order without barely
two hours notice and not giving the government opportunity to

(32:22):
respond in writing probably triggers an entire new set of
problems under the federal rules of civil procedure. This is
out of control bullcrap. Now, the overreach might actually lead
the Ninth Circuit. I you know, I get a sliver
of hope, call me naive. I'm a sliver of hope
that the Ninth Circuit panel, now looking at the government's

(32:44):
motion to stay her first restraining order, they might take
a step back and look at her conduct with a
little greater scrutiny and determine that you know what, sweetheart,
you're way over studying your bounds here, so much so
that even us, these eleven judges, who really all despise
Donald Trump, even we can't justify this, although they don't

(33:08):
care about getting overturned by the US Supreme Court. And
then I would just make this statement, this is how
we fight our political battles at the ballot box and
in the courthouse. And I know it's slow, and it's painful,
and at times it's absolutely maddening, but this is the
way to do it. And I'm simply pointing out how

(33:31):
this judge is out of control. Now, if she's so
out of control, Congress could impeach her unremove it, but
they're not.

Speaker 2 (33:39):
Going to do that. And you know they're not going
to do that.

Speaker 3 (33:42):
So the recourse then becomes through the appellate process, and
that's where the federal rules of civil procedure come into play,
and this is where the government will ultimately win.

Speaker 2 (33:53):
It'll take a while, but will win