DOJ to federal judge: Trump's power is "unreviewable"
Federal court hearings in Oregon and Illinois provide more evidence of the government's insistence on the president's limitless authority.
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I’ve been wondering why I’ve felt so tired, stressed and overwhelmed this week. There’s been a lot to keep up with, sure. But that’s every week these days!
And then it hit me: Oh yeah, I’ve been watching video after video out of Chicago where people are being harassed, detained, and beaten by a bunch of masked thugs.
If you know anything about Chicago, you know that its people don’t suffer bullshit. Chicago is the least bullshit city you’ll ever visit. I’m no different. I love Chicago. I had a lot of good times when I lived there, some of which I can even remember through the Jameson, Malort and Old Style haze.
I do not want to see immigration agents with their faces covered running around my beloved city like they own it just because Donald Trump and Stephen Miller have decided they don’t like brown people.
Today’s trauma du jour was a young woman — a mother, presumably — getting ripped out of her car by some of these agents outside UIC. I’m not going to post the video here because, frankly, I don’t want to have to watch it again. It’s fucked up. There’s no other way to say it. As she lays on the ground while three or four really tough guys put her in handcuffs, she tells the woman filming the scene her name and where she’s from. Then, she’s hauled away screaming into a car.
Honestly, what the fuck are we doing here? That’s really the only question that seems pertinent these days. Is this who we are? Are we a country where a bunch of anonymous guys in masks can pull you out of your car for no reason and haul you away to … wherever just because the president says so? That’s not the country I was raised in.
That’s not not the country I was raised in just because of a lot of technical, legal and constitutional reasons. That’s not the country I was raised in because it’s not the right thing to do.
I think another reason why this week in particular has felt so overwhelming isn’t because things are starting to hit the fan in Chicago, but because of the realization that so many people actually support scenes like the one I watched this afternoon. What country were all those people raised in?
Anyway, you can go to Doom’s YouTube page and watch a video basically saying all the same stuff I said above, if you want. For those of you who prefer the written word, I wanted to put some thoughts here as well. Now, on to a few other things related to our growing state of martial law.
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In federal court hearings today held in California and Illinois, Justice Department lawyers argued that President Trump’s power and discretion effectively can’t be challenged when it comes to deploying troops into U.S. cities.
Let’s start with Illinois. There, the DOJ’s Eric Hamilton told U.S. District Judge April Perry that the president’s power “unreviewable.” What he meant by that was, Trump has decided that crime is out of control in Chicago and undocumented immigrants are there in massive numbers, thus requiring the National Guard to come in and protect federal agents working to address both issues.
Trump’s power to do so is “unreviewable” by the City of Chicago, the State of Illinois, and even Perry and the federal courts, Hamilton said. This is, of course, not how things are supposed to work. But we’re way past that. While Perry effectively rejected this claim, siding with Illinois in temporarily the National Guard from engaging in any activity in the state, Hamilton’s argument speaks to the unbelievably broad powers that Republicans in Congress and the federal government claim Trump has.
A similar argument ensued in federal court in Oregon — but this time from a judge, not a Justice Department lawyer. U.S. District Ryan Nelson, a Trump appointee, argued that the court must defer to the president’s judgment on an important facet of the legal rationale for sending the National Guard to Portland.
There — and in Chicago as well as Los Angeles in June — the Trump administration cited Section 12406 of U.S. code. That portion of federal law allows the president to federalize members of a state’s National Guard if a foreign invasion is underway, if a rebellion is occurring, or if the president is “unable with the regular forces to execute the laws of the United States.” In other words: local cops can’t do the job.
At today’s hearing, the DOJ’s Eric McArthur argued that, not only is a “rebellion” taking place in the form of protests outside Portland’s ICE facility, but that the Trump administration has been unable to enforce federal law because it has had to expend so many resources protecting the facility.
This is a dubious claim. McArthur argued that the reassignment of about 115 officers with the Federal Protective Service to Portland to protect the ICE facility meant they couldn’t do their jobs elsewhere. For this theory to work, one would have to believe that the ICE facility there was under grave threat. Local and state officials in Oregon say it is not.
In fact, it’s under so little of a threat that Department of Homeland Security Secretary Kristi Noem stood on the roof of the building this week and stared down a group gathered on the street nearby. Most of the people in that group on the street were members of the press, the Independent reports. There was one guy in a chicken costume.
Still, Nelson seemed to accept this argument, saying that the City of Portland, the State of Oregon, and even his federal court, weren’t privy to what’s happening “behind-the-scenes.”
Translation: while there may not be that much happening on the street in front of the ICE facility, there could be all sorts of stuff the president knows that we don’t. This “behind-the-scenes” information could, therefore, legally justify the president’s deployment of the National Guard.
“The president gets to direct his resources as he sees fit, and it just seems a little counter-intuitive to me that the City of Portland can come in and say, ‘no, you need to do it differently,’” Nelson said.
At press time, a ruling in that case was pending but based on my reading of the judges’ questions, it looks like Trump’s National Guard deployment to Portland will be approved in a 2-1 decision.
Whatever happens, invocation of the Insurrection Act feels inevitable. Trump and Stephen Miller aren’t going to stop at Chicago and Portland (although it’s difficult to imagine two cities they would want to dominate more than those two). The Trump administration will keep pushing the bounds of what courts can determine is justifiable use of the military on U.S. soil until Trump invokes the Insurrection Act. Maybe that comes tonight as a result of Perry’s decision in Chicago. Who knows, but it’s probably coming.
Meantime, go Cubs.
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