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Replies

Mark Joseph Stern @mjsdc.bsky.social · 20/10/2025

Republican lower court judges are campaigning for the next Supreme Court seat by falling over themselves to prove loyalty to Trump and letting him do whatever he wants. Nothing like this happens on the left, and it's a very noxious dynamic.

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Mark Joseph Stern @mjsdc.bsky.social · 20/10/2025

A truly extraordinary dissent from a judge who basically never writes like this. bsky.app/profile/stev...

Steve Vladeck@stevevladeck.bsky.social

Divided Ninth Circuit panel stays injunction against President Trump’s federalization of National Guard troops in Portland: storage.courtlistener.com/recap/gov.us... Judge Graber, who is no firebrand, wrote quite a dissent—encouraging en banc review and some patience on the part of the public:

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Bad Bunion @rebcoco.bsky.social · 20/10/2025

As a Portlander, her entreaty literally brings tears to my eyes.

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Tanya Lolonis @tlolonis.bsky.social · 20/10/2025

“…for just a little longer.” 😶

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Epstein files or bust 🇺🇦 @crackermack.bsky.social · 20/10/2025

Are bar associations just social clubs at this point?

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Epstein files or bust 🇺🇦 @crackermack.bsky.social · 20/10/2025

Seems like the judicial branch is suffering the same amoral and unethical core collapse as the other branches. I dunno how you clean this up without firing half the judiciary.

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KanMar @mkane.bsky.social · 20/10/2025

Too late your honor, faith was eroding before Trump 2.0 and it’s gone now.

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Mark Joseph Stern @mjsdc.bsky.social · 20/10/2025

Anyway, as I noted last week, Judge Nelson's position would effectively nullify the militia clauses of the Constitution by transferring primary authority over the militia from Congress to the president. That cannot be right. slate.com/news-and-pol...

I know it’s a little trendy right now to say the litigation doesn’t matter—that lower court wins don’t matter because the states are going to lose anyway in the end. But let’s take a step back and look at where we are. The Constitution—which I do think still matters—gives Congress the power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” The National Guard is our modern-day militia. So as a constitutional rule, the president can only call up the guard in situations where Congress has deemed it appropriate. And under Title 10, Congress has said it is only appropriate during an insurrection, rebellion, or inability to execute federal law on the ground.

Denying courts the authority to enforce Congress’ requirements, which Judge Nelson argued for on Thursday, essentially nullifies a provision of the Constitution itself. If the president has unreviewable discretion to decide when there’s a rebellion or an uncontrolled riot, then there is actually no restriction on his ability to federalize and deploy the Guard. That constitutional limitation just goes poof. The president could make up any pretext whatsoever, fabricate the most fanciful fictions imaginable, and still federalize the Guard, because courts couldn’t stop him. And that would completely undo the division of power over the militia that’s set out in the Constitution.

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