Trump Meets His Fate on LA Troops in Federal Court
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Well, will they or won't they? Three-judge panel. Basically remote

heard oral argument today about whether Donald Trump can take over the National Guard in California on a scant and non-existent record of rebellion or that he has to not prove in his view that he has difficulty executing the laws in California without doing so. Is that three judge panel who heard an hour and a half or so of oral argument going to rule that Donald Trump and his actions under the 1903 Militia Act

can't be reviewed by a federal court? Or are they going to side with just Judge Breyer, the trial court level judge who has another hearing on Friday and ratcheting up the temporary restraining order up to up to preliminary injunction? Are they going to side with him and find that they don't have jurisdiction to hear the hearing? They want to know what happens on Friday instead, which is the right thing to do.

I would have stopped the hearing in the very beginning and said, we don't have jurisdiction and focus on jurisdiction. Instead, the hearing was marked by sharp questioning of both sides. Many questions being asked by the presiding judge, Judge Bennett, who is a Trump appointee, but was the attorney general in Hawaii and is generally considered to be a pragmatist and a moderate. But what will happen?

We'll know very, very soon, but I'm going to give you my overview of hearing the questions and the questioning and the briefing at the Ninth Circuit Court of Appeals. Let's get into it here on Legal AF and on the Midas Touch Network. First, let's do the what and the why. Where were we? Why were we? The last Friday, Judge Breyer

Lower Court federal judge San Francisco granted a temporary restraining order against the Trump administration finding that Donald Trump committed an illegal act, violated the 1903 Militia Act, and violated the 10th Amendment of the Constitution.

because he did not respect the sovereignty of California, did not go through the governor, did not consult with the governor, had no intention of consulting with the governor. The main argument by the government below, as it was at the Ninth Circuit, "Judge, you can't review this. This is unreviewable." Political question, doctrine stuff.

president says it's a rebellion it's a rebellion president says he can't execute the laws he can't execute the laws and you can't do a darn thing about it that's their primary argument that got up that got up to the ninth circuit court of appeals three judge panel judge miller judge bennett judge sung trump trump biden with bennett as the presiding judge because he's got senior status it was done remotely you had you had a a guy named shumate

representing the Department of Justice and Sam Harbort representing California. And the questioning ignored the fundamental jurisdictional question that I believe should have been their first discussion point. Why are we here? Appellate courts don't generally have jurisdiction over temporary restraining orders. Why are we here?

Now, the issue is whether the stay that they granted administratively should stay in place for the duration of the appeal on the temporary restraining order. The problem with the Trump administration side is there's another hearing going on scheduled for Friday that's not going to be stopped. The court is cognizant because Judge

Bennett said it at the end of the hearing that there's a preliminary injunction hearing on Friday. They could put an end to it. They could kill it.

with a ruling that says either we have jurisdiction, but we don't think the court gave enough deference to the executive branch and violated separation of powers as a result. That's one argument. They could say we don't have jurisdiction at all and say, we'll see after the preliminary injunction hearing. Isn't that a better use of scarce judicial assets and resources? They could say that.

Or they could side with the Trump administration and say, yeah, both the temporary restraining order and the upcoming preliminary injunction hearing, we're going to combine, we're going to wait to see what happens on Friday. We're going to do a stay of the entire thing and we'll see everybody in three, six, nine, 12 months.

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P-E-R-S-N-A-T-U-R-A-L-S dot com slash Legal AF or enter code Legal AF. It's hard to exactly tell by the questioning because even though there was sharp questioning, I thought the way that Bennett led things is not good for the Trump administration. He said, let's assume that the government has to put on sufficient evidence

to establish a rebellion is going on, a failure of the government, the federal government, to be able to execute its laws without the National Guard being federalized, and that we can review the decision of a president as a judge in the judiciary branch. Let's assume that. What was the evidence that was developed below? They may be questioning the evidentiary hearing or lack of evidentiary hearing by Judge Breyer.

that Judge Breyer needs with direction now for the Ninth Circuit with instructions, they will remand it to him to develop a proper record

They'll say it is justiciable meaning judges can review it, but we don't have a compelling record in front of us complete the record do it on preliminary injunction and let's all come back here and Talk about it again on another hearing when the preliminary injunction is granted But we want to see a bigger and better hearing and record being developed. I

That could be the way that they compromise. So they send it back to Breyer to develop further evidence to support the record and then make a decision. But here's my takeaway. They're going to find that this

by Trump to declare the federalization, to commandeer the National Guard, they're going to find that they have the power and the jurisdiction to provide oversight over that, to make a decision about that. That's one. Trump will lose on that argument. Secondly, they may find that the record is not properly developed and they may want Judge Breyer to develop it more properly both here and in his Friday hearing and they may give directions. That's why I think they mentioned the Friday hearing.

because this is a relatively narrow issue about appeal because Trump made it a narrow issue. The narrow issue is whether

There should be a stay of the temporary restraining order for the duration to allow for the appeal. But but there's a preliminary injunction that's going to be held on Friday hearing. I think they give direction for that hearing. I think they combine the two of them. They continue to stay for now, meaning Trump is in charge of federal troops continued in California. And they round this whole thing back up for another hearing in a week or two in front of the same panel.

Judge Sung was relatively quiet during the questioning. She's the Biden appointee. She's the newest person on the bench. Judge Miller is a federalist, is a Scalia clerk. But, you know, we can't tell from his exact questioning where it lies. But I assure you that sometime between now and Thursday, within a day,

We're going to get a ruling for the Ninth Circuit. I'll be able to report on it right here with the understanding that I believe that Friday's hearing will still go on. If it doesn't, I'll report to you, of course, what the accurate results were. I'm trying now hard to give you my my expectations as somebody that's argued before the Ninth Circuit. So until my next report, I'm Michael Popak.

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