Judge Issues Fatal Blow to Trump Shutting Down Plan

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2:15Michael Popok:It seems like I've started a lot of hot takes this week. Within breaking news, a federal judge has issued an injunction or a temporary restraining order or ruled against the Trump administration. There's been nine different examples of that this week alone. And in breaking news, we have our latest. Just coming in the last couple of hours on a late Friday night, Judge Immergut, right on time, has issued now her permanent injunction. Trial is over. Case is over. permanent injunction to block Donald Trump's commandeering, militarization, mobilization, and deployment of National Guard on the streets of Portland, Oregon and Oregon, finding that Donald Trump abused his power given to him by Congress under Section 12406 about when he could take over a state's militia and federalize it.

3:09Michael Popok:Also that he violated, This is on permanent injunction after trial that he that Donald Trump violated the 10th Amendment, which reserves to the states all powers not reposited in the federal government, their state sovereignty. I'll read to you from the order. It's 100 and it's 106 pages. I'll give you the highlights. She cites the founding fathers. She cites the framers. She cites the Federalist Papers for why we don't want a standing army in the hands of an overgrown executive. And she's not saying, she said point blank in the order, I'm not saying there aren't times when a president can't invoke 12406 to take over a state militia.

3:51Michael Popok:It's just under these times, under these circumstances, under these facts, where she had three days of testimony, dozens of witnesses, 750 or more exhibits, she just doesn't see the evidence to support the proper and good faith exercise of that particular provision. It came down to two things. Was there a rebellion, as that term has been used in our nation's history, yes or no, as exhibited on the streets of Portland during their First Amendment protests? Did that First Amendment protest tip over into armed, organized rebellion against the power of the federal government? The answer to that, she answered in the negative, no.

4:29Michael Popok:Was there an inability of Trump and his federal forces to execute their laws? Was there some sort of extended delay in the ability to capture and detain and process immigrants and migrants at the ICE detention center in Portland? The answer to that was no. Was there some violence on the streets? Yes. Was it in September when the National Guard was nationalized or attempted to be nationalized by Donald Trump? No. It was in June. By the time September rolled around, there was very little going on on the streets of Portland, Oregon, other than probably the naked bike race, the naked bikers protesting using their First Amendment speech.

5:08Michael Popok:I'm Michael Popok. You're on Legal AF and Midas Touch Network. Let's get down to the findings of fact and conclusions of law of Judge Imbergat. Let me remind you or tell you for the first time, if you didn't know, she is a Trump appointee. She is a rock rib conservative Republican. She was the U.S. attorney for Portland, Oregon in back of the day. She was a U.S. attorney, assistant U.S. attorney in L.A. She worked in Rhode Island. She is not to be trifled with. She knows what she's doing. And she had to make her decision using the Ninth Circuit, which is her bosses sitting in San Francisco, an earlier decision about California's National Guard.

5:47Michael Popok:But she said even with the National Guard decision there, which allowed the National Guard to be deployed in California, using that analysis, she still finds that Donald Trump could not deploy the National Guard in Portland, Oregon. Now, she issued two temporary restraining orders about a month ago. That went up on appeal. One of them went up on appeal to another Ninth Circuit Court of Appeal panel. They ruled against Imrica, but that was vacated and reversed by the 29 judges of the Ninth Circuit who decided to vacate that decision, and they're going to rehear the issue. But now all that appellate work is moot.

6:26Michael Popok:It's old. It's stale because those temporary restraining orders have been replaced first by a preliminary injunction that came a couple of days ago and now by a permanent injunction. See, when you're going up the scale of injunctions, you start with administrative stay for a few hours, then a temporary restraining order, which is for a few days or a week or a month, then a preliminary injunction until the end of the trial. And then at the trial, if you're successful, a permanent injunction for the duration. They have the same similar elements. You know, the judge takes a look under the hood before a permanent injunction and says, is it likely that they're going to succeed on the merits?

7:02Michael Popok:Yes. Is there inadequate remedy in law? Do I need to use my equitable powers? Yes. Does the balance of equities tips in one party's favor? Yes. Is the public interest in somebody's favor? Yes. Do they have irreparable harm? Yes. That's all done before trial. But this order, just to use this as a teachable moment for procedure, this order is after trial, three days of trial and three days of testimony that she heard from Portland ICE and other federal officers and local Portland PD and other people on the street and looked at video and evidence and records and the rest. And then from there, she's not looking at likelihood of success in the merits.

7:48Michael Popok:She's finding that somebody succeeded in the merits, in this case, Oregon and the state of California that joined as well. Here's what she says at the start of her order in the introduction. After a three-day trial that included the testimony of federal, state, and local law enforcement officials in hundreds of exhibits describing protest activity outside the Portland ICE building, the evidence demonstrates that these deployments, which were objected to by Oregon's governor and not requested by federal officials exceeded the president's authority. While violent protests did occur in June, they quickly abated due to the efforts of civil law enforcement officers, meaning non-federal, non-criminal.

8:27Michael Popok:And since that brief span of a few days in June, the protests outside the Portland ICE facility have been predominantly peaceful, with only isolated and sporadic instances of relatively low-level violence, largely between protesters and counter-protesters, not even involving forces, federal forces. When considering these conditions that persisted for months before the president's federalization of the National Guard, this court concludes that even given great deference to the president's determination, the president did not have a lawful basis to federalize the National Guard under 10 U.S.C. 12406.

9:01Michael Popok:Under the U.S. Constitution, Congress possesses the power to call up the National Guard to execute the laws of the Union, suppress insurrection, repel invasion. And Congress's delegation of its power to the president is by statute, unless and until the president lawfully federalizes National Guardsmen, they remain members of the state militia under the command of a state governor. She then says on page four, the court acknowledges that some citizens may support these deployments as a helpful military supplement to effectuate the president's immigration policy. But the founders, founding fathers, quote, embodied their profound fear and distrust of military power in the Constitution and its amendments, which has lived on through the decades as a traditional and strong resistance of Americans to any military intrusion into civilian affairs.

9:54Michael Popok:In the Supreme Court's words, slight encroachments create new boundaries for which legions of power can seek new territory to capture. This principle has been foundational to the safeguarding of our fundamental liberties under the Constitution. And she continues about the threats, because she heard the evidence. She was the trier of fact. It was a trial by judge. It was a bench trial. So on page 37, she says, In total, the above described events illustrate isolated instances of real and threatened violence towards federal officers. The court finds that those instances peaked in mid-June and declined rapidly, remaining at a low level through July, August and September.

10:42Michael Popok:That must have been the naked bicycle First Amendment protests with sporadic and manageable threats and incidents of non-life threatening violence, typical to public protest events. She also says that in quoting Patrick Henry, one of our great statesmen of a young America, on page 70, perhaps most illuminating, Judge Immergut writes, from the Virginia Ratifying Convention is Governor Edmund Randolph's response to Patrick Henry's warning of the apparent wide breadth of circumstances in which the militia could be called forth to execute the laws. Randolph stated, it is supposed that the clause for calling forth the militia in the Constitution to suppress insurrections, repel invasions, and execute the laws of the Union implies that instead of using civil force in the first instance, the militia are to be called forth to arrest petty offenders against the laws.

11:42Michael Popok:Ought not common sense be the rule of interpreting this constitution? Is there any exclusion of the civil power? Does it provide that the laws are to be enforced by military coercion in all cases? No, sir. All that we are to infer is that when the civil power is not sufficient, the militia must be drawn out. I think that kind of sums it up right there. Now, if Donald Trump wants to appeal something, he can appeal a permanent injunction back up to the Ninth Circuit. They can try to expand upon and expound upon their Ninth Circuit decision in the Newsom, California case, as we also am sure that the Supreme Court will then have it at their doorstep by an emergency appeal by Donald Trump sometime in the next week or so.

12:29Michael Popok:We'll cover it all right here on Midas Touch and on Legal AF, including the Legal AF podcast over the weekend. This is, by my count, the ninth loss for Donald Trump this week in courts around America. I didn't include the tariff debacle for him at the United States Supreme Court oral argument, nor election night Tuesday. Until my next report, I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF.

13:13Michael Popok:What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes. Where? Legal AF on Substack. Come over now to free subscribe.

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