The federal case in Oregon turns, in part, on the amount of deference the courts must give to the president’s decisions about when and where to deploy the National Guard. The federal government is arguing that the courts cannot review those deployment decisions at all. Stacy Chaffin, who is representing Oregon before the appeals court, the Ninth Circuit, told the panel of judges on Thursday that the usual policy of deference did not apply if the president’s assessment of the situation in Portland was “untethered from reality.”
ADDED: It might seem crazy to have a legal test premised on connection to reality, but I think we are that crazy. The "rational basis" test is used all the time. It's important to see that the President is asking for even less scrutiny than that. He's arguing that his decision is unreviewable.
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82 comments:
and I'm sure Stacy thinks she's the one that gets to say what is, and what is not, "untethered from reality" amiright?
Divorced from reality is the cliché on which she wants to rub a potato.
Really bad argument but what else does she have?
Transtifa has placed a federal installation under siege and there is multiple video evidence of them trying to burn it down. What more is needed to make this Fort Sumter analogy complete...cannons?
There are hours and hours of video of what looks identical to a "war zone" in Portland. I'm sure there were parts of France in 1944 that were mostly peaceful too.
Plus how many businesses have left Portland? How many police officers do they have as compared to what they should have? What's their murder rate compared to pre 2019?
well they had mortars in 2020, I guess they are on delivery
Violence against the federal government is kind of the Democrats' thing for two centuries now.
what was her previous gig, counsel for the Company,
By implication, does Chaffin mean you can be pretty distant from reality so long as you have a long enough “tether”?
For instance, a tenuous, attenuated tether to reality like the New York Times?
https://www.linkedin.com/in/stacy-chaffin-9613931b9 and the puzzle palace, nsa, so clearly her lips are moving,
- Democrat led states are actively advocating for secession.
- Antifa is spoiling for a fight in Portland and are actively provoking potential violent outcomes.
- Antifa wants an insurrection leading to a legitimacy collapse and a communist/left-anarchist revolution.
It's all right there. They're a designated terrorist organization that have placed federal property under siege. They want war. It's time to stop talking and time to start dropping hellfires.
The idea that you're ever going to get a Federal judge to rule that the courts have no power to stick their nose into something because of the constitution is laughable.
EVERYTHING is subject to their rule. Even supposed "conservatives" like Grandma O'Connor and Anothony Kennedy could "never say never". Roberts and ACB are in the same boat. Of course even if the SCOTUS rules and says "Courts stay out - none of your business" there's nothing to stop another SCOTUS in the future from ruling the opposite.
What happens when the assessment that the President’s assessment is untethered from reality is untethered from reality?
They want war. It's time to stop talking and time to start dropping hellfires
I watched a video that suggest a block away from the front there’s a craft services tent and a tent to restock agitator props. Maybe if we just took down the craft services tent they’d all leave and go to the food carts on SW Alder?
Wasn't the question of whether the president can use the national guard to enforce federal law over the objection of state authorities answered in the positive in Arkansas, Mississippi, and Alabama in the 1960s?
I'm sure that there's some dependence on facts, but local residents are trying to stop federal officers from enforcing the laws, and local authorities are either not stopping them or actively aiding them. That's the big picture, isn't it?
Untethered from reality? I'd say we all saw how Portland city officials were untethered from reality when they did NOTHING during the St. George Floyd riots.
The "untethered from reality" comment is just that one leftwing lawyer's opinion which is grounded in the Trump-chaos narrative.
untethered from reality
What is their evidence given Trump just created peace in the Middle East?
they read the local fishwrap
rehajm said, "I watched a video that suggest a block away from the front there’s a craft services tent and a tent to restock agitator props. Maybe if we just took down the craft services tent they’d all leave and go to the food carts on SW Alder?"
This is what happens when the gay little theater kids you knew in high school think the movies they've seen are real life.
@George Grady The distinction between now and Ike's decision with Faubus and JFK's with Barnett IIRC is that the governors were the ones violating the law, not the people, some of them.
"Wasn't the question of whether the president can use the national guard to enforce federal law over the objection of state authorities answered in the positive in Arkansas, Mississippi, and Alabama in the 1960s?"
That was pretty similar. Started with a Republican President forcing resistant state Democrats to follow the law. Does this mean that after a lifetime of watching politics nothing really changed? It seemed like a really changey period, but maybe not.
As always, think about what a Democrat president could do the next time social justice/woke fever sweeps society.
It's not easy to imagine the left enjoying such popular support again, but it will happen.
The word "tethered" is used more often in legal arguments than in ordinary speech and it's a pretty recent trend. Why say "connected" or "tied" when you can say "tethered"? "Tethered" seems so much more alive... and leathery.
Why say "connected" or "tied" when you can say "tethered"?
I think "tethered" was meant for connected physical things, not ideas.
"Why say 'connected' or 'tied' when you can say 'tethered'? 'Tethered' seems so much more alive... and leathery."
Vegan tether harness has a nice ring to it.
Used to be that every playground had a tether ball set up. No more. Of course they don't even have kids playing.
How bout the president’s assessment is not entangled with reality (quantumly garnering)?
I think I have CTE from playing tetherball
A tether implies slack if something is tied it indicates that it is more secure like the two objects are made one. One tethers tin cans to the back of a car after getting married but one does not tether luggage to the top of the car.
National Guard does seem to fall under "unreviewable" as how could a judge second guess the need for federal law enforcement?
What is untethered from reality is that a district judge can determine that the president has made an incorrect choice in the personnel used to defend government employees and property from crimes. It’s like the National Guard is in the wrong union to defend ice, but I remember the NG in Chicago in 68 doing the same thing. Anyway Oregon will loose the case.
MLK and Gandhi before him figured out that it was a bad idea to get deadly violent against the government. The government has nearly infinite capacity to escalate: armed soldiers, tanks, artillery, aircraft. You can't beat 'em playing their game.
It's important to see that the President is asking for even less scrutiny than that. He's arguing that his decision is unreviewable.
That's because it's an entirely political question, and therefore it IS not reviewable.
The federal government is arguing that the courts cannot review those deployment decisions at all. Stacy Chaffin, who is representing Oregon before the appeals court, the Ninth Circuit, told the panel of judges on Thursday that the usual policy of deference did not apply if the president’s assessment of the situation in Portland was “untethered from reality.”
Well, since his assessment is entirely linked to reality, and it's the Democrat "judge" below whose blathering are “untethered from reality”, that's not relevant to this situation
Why do some people still insist on using the word "loose" in place of the correct word 'lose'?
https://www.google.com/search?q=loose&oq=loose&gs_lcrp=EgZjaHJvbWUyDAgAEEUYORixAxiABDIKCAEQABixAxiABDIKCAIQABixAxiABDIKCAMQABixAxiABDIKCAQQABixAxiABDIHCAUQABiABDIKCAYQABixAxiABDIKCAcQABixAxiABDIKCAgQABixAxiABDIKCAkQABixAxiABDIKCAoQLhixAxiABDIKCAsQLhixAxiABDIHCAwQABiABDIHCA0QABiABDIHCA4QABiABNIBCDE4NDNqMGo3qAIQsAIB8QWIMBHR-_2gMPEFiDAR0fv9oDA&client=ms-android-uscellular-us-revc&sourceid=chrome-mobile&ie=UTF-8
What will be sad is that there is a lowinsh probability that someone in Portland will kill an ice agent. And then when people claim that the Judge facilitated by removing guards, democrats will say “but there is no antifa.”
Another bad argument put forth to “get Trump” but will as usual result in the higher court ruling that executive power resides exclusively with the Chief Executive. He has to be able to move troops when and where he needs them. Even if it offends people untethered from reality.
“Michael Fitzgerald said...
Why do some people still insist on using the word "loose" in place of the correct word 'lose'?”
Well Mike, I guess I did it because unlike you, I am just a big old dumbshit.
Josephbleau said, "What will be sad is that there is a lowinsh probability that someone in Portland will kill an ice agent."
The Union garrison formally surrendered the fort to Confederate personnel at 2:30 p.m., April 13. No one from either side was killed during the bombardment. During the 100-gun salute to the U.S. flag—Anderson's one condition for withdrawal—a pile of cartridges blew up from a spark, mortally wounding privates Daniel Hough and Edward Galloway, and seriously wounding the other four members of the gun crew; these were the first military fatalities of the war.
Basically if that happens, it would represent more actual KIA due to direct enemy action than were killed the first time democrats pulled this shit. And these toddlers are just fucking dumb enough to try.
Isn't the test of the President's mental health prescribed in an US Constitution amendment? I don't recall it saying anything about judicial review.
Portland has crossed over into The Twilight Fringe. Untethered, indeed. #HateLovesAbortion
It does seem to me that the problem is not that state officials are defying federal laws, but that state officials are refusing to enforce state laws to maintain order. It would seem that state officials are preserving their right to allow mayhem to flourish, at the expense of federal policy. Do they have that right?
IANAL … but in my view, the scope, scale, and disruptive nature of this anti-Trump judicial activism represents the most serious threat to the republic I have seen in my lifetime (75+ years).
Here we have three branches of government, two of which are (arguably) answerable to the people. The people can vote out the Executive and the Legislative. Therein lies the check and balance.
But the Judiciary seems to have nothing to rein it in. Everywhere you look, there's some whack-a-mole popping up on the judicial side, 99.756% favoring the left side of the political spectrum. That's flat wrong!
Making it worse, these pop-ups are consequential and obstructionist. There is no check and balance for these guys. Many of these judges at various levels are showing themselves to be political hacks, no better than the many corrupt folks on Capital Hill.
But — making it worse — these judicial branch guys can hide behind their black robes and do/say anything they want. The threat of impeachment is a joke; the Congress can't even pass a budget! A judge rules on something and gets reversed? He/she just keeps on keeping on. No firing, no sanctions, no "trip to the woodshed." I worked in business for many years: if a guy screwed up, there were clear and serious consequences. Judicial branch = Ø.
Tell me I'm wrong about this. Or better yet, explain to me how we can get out of this mess.
“I'm glad I'm old so I won't have to see the collapse of the republic that I love”
— Attributed to Thomas Sowell but certainly reflective of how I feel.
"Do they have that right?"
Democrats seem to think that laws only exist to be used to harass their opponents and that any law interfering with them getting what they want can be ignored,
Josephbleau, nothing personal, I am sincerely wondering why people write the extra 'o' and try to change the meaning of a common word. The thing is, it isn't dumbness. You obviously know the difference between 'loose' and 'lose'. I noticed people online started doing that some years ago, 5 or 10 or so. And it wasn't one or two times, I'd see it all over. I even checked to see if 'loose' wasn't an archaic or regional version of 'lose', but no, it's not. It just seemed to be a "current thing", Iike people across the country all repeating a catchphrase or posting the same meme. It struck me as really annoying and unnecessary. I wondered if people were copying the way Michael Savage pronounced the word? Was the source of it just another libtard attack on our english language? Why are people doing this, I'd cry out to the Gods above. Whyyyyyyy!!!!!!!
Thankfully, it seemed to have died out, so your usage of it was like seeing an invasive species after an infestation was thought to be eradicated. Substituting 'loose' for 'lose' is literally an atrocity, if not a war crime.
“I think I have CTE from playing tetherball”
It must compliment the bum knee you obtained from your stint as hopscotch champion.
“ Thankfully, it seemed to have died out, so your usage of it was like seeing an invasive species after an infestation was thought to be eradicated. Substituting 'loose' for 'lose' is literally an atrocity, if not a war crime.”
Well, I probably did it because I like the double o “oooooh” sound applied to loser.
"The federal case in Oregon turns, in part, on the amount of deference the courts must give to the president’s decisions about when and where to deploy the National Guard."
Can "the courts" rule on the president's decisions about what to have for dinner, too?
"the amount of deference the courts must give to the president’s decisions about when and where to deploy the National Guard. "
"He's arguing that his decision is unreviewable."
Constitutionally his decision is COMPLETELY reviewable, in 2 ways:
1) if the voters fail to reelect him*
2) if the House votes to Impeach, AND 67 Senators vote to convict
Other than THOSE TWO ways, Constitutional options are limited to not funding the Government (which, surprisingly
is ALREADY Happening)
him* since Trump Already won At LEAST TWO elections..
this one is is kinda a given.
RideSpaceMountain said...
- Democrat led states are actively advocating for secession.
the More Things Change.. the MORE They Stay the Same
Re: - Democrat led states are actively advocating for secession.
Okay, if that's what Democrats want. In that case though, Republicans get to draw the boundaries.
Sound good to you?
The language of the Insurrection Act is clear. When the president "considers." Full stop. The invocation is not justiciable. If the courts want to invalidate a specific invocation, they must invalidate the Act itself. Which would return sole power to use the military domestically to Congress, through a declaration of martial law. Otherwise, it is up to Congress to deal with a president invoking the Act without what others consider proper justification.
Steven Miller called the president’s power “plenary” in an interview on October 6 — and then froze for fifteen seconds on live TV. Accidental, I’m sure, but it felt like the Constitution itself hit pause.
If Trump, let's say, brought to Portland 1500 FBI and ATF agents fully armed like the National Guard units to defend the federal facilities, is that reviewable by a district court judge? I don't see how it possibly could be reviewable. So what is the difference with the National Guard?
"The language of the Insurrection Act is clear. When the president "considers." Full stop. The invocation is not justiciable. If the courts want to invalidate a specific invocation, they must invalidate the Act itself."
Exactly. It is simply illogical to assert that a district judge has more power to determine what justifies action under the Insurrection Act than the President does. The only institution that can overrule the President here is Congress.
So, can they show the videos of the violence in the court? That would for the city/state lawyer to field the famous Richard Pryor question: Are you going to believe me or your lying eyes?
Orval Faubus and George Wallace would like a word with their fellow Democrats in Illinois. . .
Second time in 2 days hearing a discussion of the word "tether". In the other instance, a movie, a character used the phrase "off the tether" as deliberate choice.
That line was uttered well before Richard Pryor,
Duck Soup,
Teasdale: Your Excellency, I thought you left.
Chico Marx: Oh no. I no leave.
Teasdale: But I saw you with my own eyes.
Chico: Well, who ya gonna believe me or your own eyes?
Probably used before that.
Let’s go back in time to 1944. American, British, and Canadian troops storm ashore on beaches in Normandy, only to be met by a German officer waving who I CMS their officers that they’ve gotten a temporary restraining order from a US district judge and they need judicial review of when and where D-Day can take place. Disappointed, the allied troops collect their dead and wounded and revised thrir landing craft to go back to England.
Federal Judge blocks Texas National Guard from deployment in Chicago.
“Late Thursday afternoon, a judge said in court that the deployment violates the 10th and 14th amendments. She issued a temporary restraining order.
In making the ruling, Judge April Perry said "not even Alexander Hamilton could have envisioned one state's militia to be used against another state's residents.
https://www.fox4news.com/news/texas-national-guard-deployment-chicago-ruling
Well, I probably did it because I like the double o “oooooh” sound applied to loser.
10/9/25, 4:41 PM
Some people just want to hear the world burn.
I don't have a dog in this fight, but doesn't the “oooooh” in "looser" and "loser" sound pretty much the same? Isn't the difference in the "sss" or "zzz" sound of the "s"?
I've said it before, but it's remarkable how quickly Trump's DOJ has squandered the seemingly ironclad presumption of candor and credibility they enjoyed with federal judges.
They've lied so shamelessly, flagrantly, and frequently that judges have decided not to be played for fools any more.
U.S. District Judge April Perry says it comes down to a "credibility determination."
"I simply cannot credit [the Trump administration's] declarations to the extent they contradict state and local law enforcement. … DHS' perception of events are simply unreliable." ~ NYT
The first Calling Forth Act of 1792 required a federal judge to certify that civil authority had broken down before the President could call out the militia. Mr. Washington and Justice James Wilson followed that rule during the Whiskey Rebellion (1794).
Congress cut the clause in 1795, not out of principle but because messages took weeks to travel. The Insurrection Act of 1807 simply carried that broader discretion forward.
We don’t have that bottleneck now — a judge could certify in minutes. The safeguard was dropped for distance, not for good. Maybe it’s time to tie the tether back on.
It sounds like all Trump really needs to provide for the troops is a change of uniform and a temporary assignment letter to ICE.
"a judge could certify in minutes."
Which judge? There seem to be a lot of them.
Bill Harshaw said... [hush][hide comment]
@George Grady The distinction between now and Ike's decision with Faubus and JFK's with Barnett IIRC is that the governors were the ones violating the law, not the people, some of them.
I would beg to differ with that comparison.
This is an interesting and relatively short (12 minute) video describing the force, mission, and actions of the 101st Airborne unit deployed to Little Rock. There's also a transcript if you prefer.
While Faubus did order elements of the Arkansas National Guard, prior to their nationalization by Eisenhower, to prevent the entry of black students to Little Rock Central High School, the actions of the 101st were primarily concerned with ensuring order and controlling the anti-integration crowds that gathered, largely because it was suspected that Faubus and other Southern Democrat segregationists would not order the LEOs under their command to do so.
To me this is directly applicable to the situation in Chicago where Johnson and Pritzer have publicly ordered the LEOs under their control to refrain from crowd control or other assistance to ICE operations. It also seems applicable to the situation in Portland where the local LEO seem either unwilling or unable to control the mobs attacking Federal facilities.
In both cases, as in Little Rock and likely other integration conflicts, it is not necessarily the direction action by the local authorities that can justify the deployment of Federal troops but the the threat that the local authorities would not enforce public order in the face of mobs attacking the students who were scheduled to attend classes in Little Rock, the ICE agents in Chicago, or Federal facilities in Portland.
How did the judiciary come to be populated by proponents of lawlessness?
We don’t have that bottleneck now — a judge could certify in minutes. The safeguard was dropped for distance, not for good. Maybe it’s time to tie the tether back on.
Congress has the power to do that. A judge does not--unless Congress changes the law.
Delegation of the trigger may actually be justiciable. Martin v. Mott said courts can’t question a president’s factual call once the statute is valid—but whether Congress can delegate that call without any standard is a different matter. That’s a structural question under Article I, not a political one under Article II.
Admittedly, I’m not a fan of delegating policymaking in general. Article I was meant to define the policy and Article II to carry it out. When Congress writes open-ended language—“when he considers,” “as necessary,” “in the public interest”—it isn’t legislating, it’s outsourcing. The result is government by interpretation instead of by law.
Justabill said...
How did the judiciary come to be populated by proponents of lawlessness?
My belief is that many judges are nothing more than failed lawyers with sufficient political connections to get appointed or elected to the bench. Prove me wrong.
ggie said...
It does seem to me that the problem is not that state officials are defying federal laws, but that state officials are refusing to enforce state laws to maintain order. It would seem that state officials are preserving their right to allow mayhem to flourish, at the expense of federal policy. Do they have that right?
No more than Southern Democrat State governments had the right to ignore Brown v Board of Education and refuse to allow black kids to go to "white" schools..
Eisenhower deployed the 101st Airborne to force those Democrats to back down. Trump is free to use the National Guard, or the military, to force these Democrats to back down
Keldonric, if Congress doesn't like the way Trump is enforcing the laws they wrote, they can impeach him (for real this time). And it doesn't matter why you think Congress did away with the requirement, it's not in the statute and waving your hands can't bring it back.
On the lose vs. loose-
Why can't people tell the difference between martial law- generally enforced by militia or military forces, and marshals, people who enforce civil law? It bugs ne every time I see someone writing about marshal law, half the time with two "l"s.
And just how many troops does the judge command?
It’s a proof reading issue Fitzgerald. Geez.
Marshalling forces for martial law.
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