Harry Litman - Portland Judge's Vital Lesson: Deference Is Not Blind Obedience

[Yo_Mama_Been_Loggin]

District Court Judge Karin Immergut’s adroit opinion blocking the administration’s plan to deploy National Guard troops to Portland offers a model for how courts should handle the Trump administration’s many assertions of “emergency power.” The opinion is low-key but precise and judicious, and it points the way out of a legal thicket that has been growing denser with every new assertion of presidential emergency power. Most importantly, Immergut, a Trump appointee, insists on a critical constitutional truth in the age of Trump—one that other courts have yet to express: deference is not the same as blind acquiescence.

The case forced Immergut to confront the central pathology of the Trump era. Trump’s pattern of invoking “emergencies” has been prolific—and consistently mendacious. He has lied about imaginary “invasions” at the southern border, about “crime waves” in the District of Columbia, about fentanyl “floods,” and immigrant “armies.” Now he has invented a supposed “rebellion” in Portland to justify sending in troops under 10 U.S.C. § 12406—a statute that allows federalization of the National Guard when there’s an invasion, a rebellion, or when the President is unable, with the regular forces, to execute the laws.

Immergut, who lives in Portland, coolly explained that there was no insurrection. Portland was not “war-ravaged.” Protesters were not “domestic terrorists.” Local law enforcement was fully capable of handling the scattered incidents that did occur.

Trump has been prodigal in invoking “emergencies”—at the border, in cities, even in cyberspace—but nearly all have rested on transparent falsehoods. There has never been an “invasion” of marauding migrants, or a fentanyl “siege,” or a crime wave in Washington sufficient to justify federal deployment. Each supposed emergency has been a pretext for asserting powers Congress never gave him. The pattern is as consistent as it is brazen: declare a crisis, invent the facts to match, and dare the courts to stop him.

https://harrylitman.substack.com/p/portland-judges-vital-lesson-deference