How To Lose An Appeal Before You Make An Appearance

Bonta: She was really miffed. Her first set of questions to the federal government was: How does this not violate my order from yesterday?

Just minutes before the hearing commenced, we got word through a memorandum from Secretary Hegseth that the Texas National Guard has been… pic.twitter.com/QllTaeXeRZ

— Acyn (@Acyn) October 6, 2025

Bonta: She was really miffed. Her first set of questions to the federal government was: How does this not violate my order from yesterday?

Just minutes before the hearing commenced, we got word through a memorandum from Secretary Hegseth that the Texas National Guard has been federalized — 2,000 of them — with 400 being deployed to both Portland and Chicago.

So it’s clear that this is a sort of whack-a-mole approach from the federal government:
You stop the Oregon National Guard from being federalized? Fine — we’ll bring in the California National Guard. You stop the California Guard from being brought up north? We’ll bring in the Texas National Guard.

So we asked the judge to issue a broad order — one that applies to every National Guard unit in every state and the District of Columbia — stating that none of them can be federalized and deployed to Oregon.

She issued that order from the bench and will follow it up with a written order as well.

The conditions haven’t changed in 24 hours. National Guard deployment in Oregon was unlawful yesterday — and it's still unlawful today. It doesn't matter where the National Guard comes from — whether it's Oregon’s, California’s, or Texas’s.

And I think the judge nailed it. The Trump-appointed judge nailed it.

A/K/A: abandoning all appearance of acting in good faith.

And during a government shutdown, NG troops don’t get paid.

Judge: Since TRO yesterday, my understanding is president has brought National Guard from CA to OR, and just now got memo saying also president has determined that TX NG will be sent to OR, IL, etc.

Judge: How could bringing in NG from CA not be in direct contravention of TRO I issued yesterday?

DOJ: TRO related only to Oregon NG

Judge: You are an officer of the court. Aren't defendants clearly circumventing my order?

Judge: Mr. Hamilton, you are missing my point. Basis for my TRO was situation on the ground in Oregon. Is there any legal authority for mobilizing NG for one purpose in CA and redirecting them to diff state where there is no showing that military help is necessary?

DOJ: Few precedents for 12406

DOJ: President determined in June that CA NG had to be federalized, and ...

Judge: Mr. Hamilton, Mr. Hamilton, if it were the case that you could federalize NG in one place and simply send to another place where pres doesn't have authority to federalize NG, what would purpose of 12406 be?

DOJ: CA NG is already federalized

Judge: You are an officer of the court. Do you think this is an appropriate way to deal with my order? Appropriate way of dealing with ruling you disagree with?

DOJ: Well, I'm not a policy maker

Judge: You're a lawyer

DOJ: Well, CA NG already federalized, and ...

Judge: Anything else you want to argue?

DOJ: Yes, your honor. OR and Portland lack standing to challenge relocation of out-of-state National Guard. Only CA could possibly sue under 12406, but CA can't establish standing or irreparable harm.

DOJ: If the court enters a second TRO, we move for a stay pending appeal. We respectfully request that the court note this in any order it issues.

Judge: Response, Mr. Kennedy?

Oregon: I want to note new info about impending transfer of TX NG members. We received at 6:36 p.m., so apologies.

Oregon: Feels like we're playing a game of whack-a-mole. Your honor said there was no basis in conditions in Oregon for federalizing troops. That caused govt to send in CA NG, we filed motion to enjoin, and then we heard about mobilizing TX NG under same design. So we need to broaden relief.

And cutting to the chase:

Judge: That's what I'll do. Prohibit federalization or deployment of any NG troops into Oregon. For all reasons in prior opinion. Deployment of federalized military is ultra vires and contrary to law, violating Title 10, section 12406. I also find it's likely that defendants violate 10th Amendment.

A few things for the 9th Circuit to chew on.

Closing thoughts from Popehat, a former AUSA:

Every DoJ attorney promoting and defending at this stuff should never again eat food that is less than 10% spit