A Judge Ruled That Trump Can Use the Military Domestically and That Those Who Don’t Like It Go Pound Sand

Let’s all keep an eye on Judge Ryan Nelson of the Court of Appeals in the Ninth Circuit, which includes the Pacific Northwest. I think Judge Nelson has a lean and hungry look and that he is looking at the next several steps up the ladder that ends in that great white temple across the street from the Capitol. On Monday, a three-judge panel of the Ninth Circuit granted a stay on a lower-court injunction that forbade the president from sending troops into Portland, Oregon. Two of the three judges, including Nelson, were Trump appointees, so the decision was no surprise. But Nelson took the opportunity in his concurrence to throw long. His concurrence might as well have been a résumé dropped on the Resolute desk.

Essentially, Nelson ruled that the president may use the military domestically for any reason and that if the legislative and judicial branches don’t like it, they can pound sand. Nelson made his position clear in the arguments before the panel’s decision. It doesn’t matter if the actual circumstances require it; if the president can concoct a violent uprising based on old Fox News B-roll, he’s good to go. From Talking Points Memo:

“The President gets to direct his resources as he deems fit and it just seems a little counterintuitive to me that the city of Portland can come in and say ‘no, you need to do it differently,’ ” Nelson said to Oregon’s Senior Assistant Attorney General Stacy Chaffin. “Now, I understand there’s a statute here and we’re going to have to review that, but this goes to the level of deference that I think the president is entitled to in these circumstances. And it’s not all driven by what we see on the streets, it’s also driven by, to some degree, what’s going on behind the scenes, and you don’t have full view into that.”

Ah, “behind the scenes,” eh? Antifa on bicycles? Hamas plotting insurrection over avocado toast? Doesn’t matter to Judge Nelson, who’s been marked for those golden stairs ever since he was a minor player in the Great Penis Chase of 1998 while he was still in law school. His concurrence was a bit of a reprise.

But given that these legal issues are moving quickly, I write separately to emphasize four points. First, under current Supreme Court precedent, presidential determinations under § 12406 are not reviewable by federal courts. Second, Plaintiffs have serious standing issues because they only seek injunctive relief that this court lacks the power to issue and Plaintiffs lack an injury in fact. Third, while the Per Curiam order takes a more fact bound approach to the issues presented, the President’s determination under § 12406(3) and § 12406(2) are bolstered by the history and tradition of the early Militia Acts. Fourth, the likely lawfulness of the President’s determination under § 12406 is bolstered by the executive’s proportionate response to the events in Portland.

The “events in Portland,” which Nelson compares to Shays’s Rebellion and the Whiskey Rebellion to justify the president’s actions against his fantastical bogeymen, are simple law-enforcement problems. But what concerns me most is that ideologically based ambition is now the way to get ahead in the judiciary. Thus do the federal courts become Cabinet officials, or worse.