is a features editor who publishes award-winning stories about law, tech, and internet subcultures. A journalist trained as a lawyer, she has been writing about tech for 10 years.
After getting off the phone with Oregon Governor Tina Kotek on Saturday, the president mused over something that had baffled him about the call. Kotek had been “very nice,” said Trump in an interview the next day. But she was trying hard to convince him not to send in the National Guard, and that just didn’t make any sense to him. “But I said, ‘Well wait a minute, am I watching things on television that are different from what’s happening?’”
Hours later, Defense Secretary Pete Hegseth issued a memorandum federalizing 200 members of Oregon’s National Guard to deploy to Portland, and the state of Oregon promptly filed suit to stop it from happening.
In a hearing on Friday, the state of Oregon and the city of Portland presented arguments as to why a federal judge should grant a temporary restraining order against Trump. Over the course of about an hour and a half, the court appearance became a strange collision of television and reality, internet posts and statutory provisions. The two sides veered over a wide swath of legal territory — the prongs of Section 12406, the Posse Comitatus Act, the Administrative Procedure Act, irreparable harm. But the formalized structure of the hearing and the stolid, wood-paneled surroundings could not disguise the sheer insanity at the heart of the case. The lawsuit boils down to two things: the “great level of deference” owed to the Executive Branch when federalizing the National Guard, and the obvious truth that the Executive Branch is, at the moment, completely out of its gourd and posting through it.
There are three prongs to 10 U.S.C. § 12406, which outlines the circumstances under which the president may call up the National Guard. The first is in case of an invasion by a foreign power. The second is in the case of a rebellion. The third is when “the President is unable with the regular forces to execute the laws of the United States.”
“The parties have largely focused on Prong 3,” said Judge Karin Immergut as the hearing commenced. “I don’t think anyone has argued that we’re in danger of rebellion against the authority of the United States, but the defendants can correct me on that.”
As it turned out, the defendants — or rather, the DOJ attorneys representing the president and Pete Hegseth — did want to argue that Portland was on the verge of a revolt, saying that the protests at the ICE facility in Southwest Portland were a “deliberate organized resistance to the force and arms” of the United States.
“That standard is so broad it would swallow a whole lot of conduct,” objected Oregon senior assistant attorney general Scott Kennedy. “Most protests oppose authority.”
But somehow, the DOJ’s assertion that Portland was in danger of falling into an armed rebellion, wasn’t the most surreal part of the hearing. Most of the hearing was devoted to whether or not the preconditions for Prong 3 (the inability to execute US law using “regular forces”) had been met — or rather, whether the president’s determination that it had been met was valid.
When Judge Immergut asked the DOJ what the primary source of authority for the president’s determination was, deputy assistant attorney general Eric Hamilton replied, without the slightest hint of shame, “The most important determination is reflected in posts that he made on Truth Social.”
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