Friday Round Up! 6/20/25

The ramifications of Trump's control of the military both at home and abroad.

And the saga continues. Which one, you ask? I’m referring here to Trump’s deployment of the military in L.A.’s streets.

Earlier this month, I wrote a general explainer on the various authorities Trump is using and could potentially use to justify and even expand the use of the military domestically. And in last week’s Round Up, I discussed the first round of litigation in the Northern District of California, where Judge Breyer put the kibosh on Trump’s federalization of the California National Guard, finding that the situation in L.A. did not amount to a “rebellion” under 10 U.S.C. Section 12406 and that he had not properly issued his orders “through” Governor Newsom, in accordance with the statute and therefore violated the Tenth Amendment.

Well, the 9th Circuit Court of Appeals did not bite on either of these rationales. With regard to the first issue (to which I will return), the court noted that it did not have to reach the “rebellion” question because the situation in L.A. did meet a different criterion listed in Section 12406, which authorizes the President to federalize the National Guard when he “is unable with regular forces to execute the laws of the United States.” The court found that the facts presented by the government — including that protesters threw objects at ICE officers, tried to breach a parking garage of a federal building, and committed acts of vandalism created a colorable argument that the situation in L.A. met this standard.

The Ninth Circuit also found that the government was likely to prevail on its claim that it met the procedural requirements of Section 12406. (Remember this was whether to stay a temporary restraining order, and one of the factors the court considerations is the “likelihood of prevailing on the merits” — so it is assessing the strength of the argument, not making a final conclusion on the merits themselves.) In particular, the court found that under California law, the National Guard’s Adjutant General authorizes him/her to “issue all orders in the name of the governor.” As a result, the government’s sending of Trump presidential memorandum as well as Defense Secretary Pete Hegseth’s memorandum relinquishing command to the governor’s agent, the Adjutant General — which were then forwarded to the governor — was procedurally sufficient. The court noted that Section12406 does not give the governor the power to refuse consent, and therefore the procedural piece was more or less a formality.

In other words, Trump gets to continue commanding the California National Guard over Governor Newsom’s objections, though the district court has now asked the parties to brief whether his court still has jurisdiction to consider the scope of the Posse Comitatus Act in light of the Ninth Circuit’s decision. So stay tuned for that as it develops.

I think the larger concern right now is what this decision means for Trump’s plans for the rest of the country. Although the Ninth Circuit’s decision is only binding in the states under its jurisdiction, its reasoning gives a green light for Trump to use the same rationale to federalize the National Guard in other states. Trump has already signaled the playbook here, noting that he is going to focus ICE enforcement in major cities of blue states. Of course, these raids will provoke protests in those cities. Since, apparently, even a minority of protesters throwing items and vandalizing property could “colorably” meet the threshold of Section 12406, Trump will seize on any such activity to justify invoking the third prong of the statute and federalizing those state militias, with or without the consent of those governors. Yes, his actions can be challenged since those states won’t neccesarily fall under the Ninth’s Circuit’s order, but here’s the problem: Once the military is there, it’s a fait accompli: Trump wants the spectacle, and he will get it as the litigation drags on, normalizing the country to it in the process. This was exactly what I described to Ali Velshi last weekend:

As I noted in my last Round Up, so much of how Trump’s actions will fare in court (on immigration and other matters) will depend on how much deference courts give to his proclamations of “rebellion” and “invasion” or as in this case, that he is “unable to execute the laws.” If the Ninth Circuit is a harbinger, things do not look great, because the court’s reasoning that Trump met the statutory standard rests on its conclusion that it is required to give “a great level of deference to the President’s determination that a predicate condition exists.” This is basically a Who’s On First, separation of powers edition.

The irony is that the Ninth Circuit in the same breath states that it would not be required to accept a President’s determinations if they are “absurd” made in “bad faith.” Ummm…hello? Legal scholar Ilya Somin noted the pretextual nature of Trump’s invocation of military force:

[T]he Ninth Circuit should have paid greater heed to its own stricture that deference should not be applied to presidential determinations made in ‘bad faith.’ There is considerable evidence of such bad faith here. Trump has a long history of advocating the use of the military against political opponents, and generally praising political violence against them. More recently, high-ranking administration officials have openly stated that the goal of deploying the military in LA is to usurp the authority of the state and local governments. For example, DHS Secretary Kristi Noem has said that ‘[w]e are staying here to liberate this city from the socialist and burdensome leadership that this governor and this mayor have placed into this city.’

At the very least, if courts (wrongly) reject other reasons for invalidating Trump's federalization of the Guard, they should closely investigate the evidence of bad faith here, instead of just presuming good faith, as the Ninth Circuit judges did. Bad faith, even if present, might not by itself justify striking down the President's actions. Sometimes government officials do the right thing (or at least the legal thing) for the wrong reason. But extensive evidence of bad faith is sufficient reason to deny deference that might otherwise be appropriate.

So it’s not looking great, folks. More to come as this unfolds.

Meanwhile, we leaned into Renato’s prosecutorial experience in sharing cases between the feds and states, in light of the horrific double homicide of Minnesota House Speaker Melissa Hortman and her husband and the shooting of another legislator and his spouse. We also discussed the impact of the despicable tweets made about it by Senator Mike Lee:

My first Ask Asha!

So, speaking of the military, I am very excited to present my first Ask Asha video, which is about the War Powers Resolution. Let me know your thoughts and keep an eye out in the Substack chat as I will be soliciting more questions this week!

What I’m Reading Now:

Thanks for those of you who joined my Freedom Academy Book Club discussion with Fordham Law Professor Zephyr Teachout! I’m still deciding which book to choose for the book club next, but in the meantime am doing research for my own book project. I’m currently reading John Dean’s memoir, Blind Ambition — and I have to say, I thought I knew a lot about Watergate but Dean’s accounts of the “rooms where it happened” in the leadup to Woodward and Bernstein breaking the story are absolutely riveting. (Be careful reading before bed because I had a stress dream about being in a presidential administration with a major scandal about to blow.) It was also fascinating to learn that Nixon’s plan for his second term — before it got consumed and then derailed by Watergate — was to consolidate control of the executive branch and ensure it was filled with loyalists, much as we are seeing now.

Upcoming events:

• Wine & Fries Happy Hour with Katie Phang, June 29, at 8 p.m. Awwwww yeah. My friend Katie, former host of MSNBC’s The Katie Phang Show and now fellow Contrarian, will be joining us. Katie is irreverent, hilarious, and sooo smart…I can’t wait! A link for this will be sent to Wine & Fries (founding) members three hours before the event, and will not be recorded.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump and Musk’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. I had a chance to attend the Council of Foreign Relations national conference last week and one of the sessions I attended was about populism and the future of democracy. It was clear from the discussion that everyone feels depleted and not sure of where to focus their attention. The following comment stuck out to me and I wrote it down:

   Choose your fight

   Choose your organization

   Choose your cause

   And then take one (even small) step towards doing something about it.

3. Self care tip of the week: Ease muscle tension. I am not going to get prescriptive about how to do this because I have realized that there are some weird people on this planet who do not enjoy massages. (Full disclosure: I do, which is why my Substack is late getting out today.) On the other hand, I hate long, hot baths, they bore me and make me feel bad about wasting water (hot tubs, different story). My son is trying to convince me on the health benefits of ice baths and cold showers. (Not going to happen.) Whatever works for you, take a minute to chill out — the world will still be falling apart when you get back, it can wait.

‘Rise like Lions after slumber
In unvanquishable number—
Shake your chains to earth like dew
Which in sleep had fallen on you—
Ye are many—they are few.’

— The Masque of Anarchy by Percy Bysshe Shelley, stanza XXXVIII