Making Lemons 🍋 Into Lemonade

 JMM tries to write a law review article:

Still, the Trump administration and its allies are so confident that they’ll ultimately prevail in the courts that Trump has kept on the shelf a backup plan to invoke the Insurrection Act, which gives the president extremely broad latitude to deploy the military for law enforcement activities, per multiple reports.

Yeah, about that. I ran a calculation on that table of invocations of the Act. It averages out to once every 7.5 years since its enactment, roughly. And we’re still a republic. Huh.

But JMM is really appalled by the 9th circuit.

The 9th Circuit Court of Appeals arguments on Thursday showed how eager Trumpified courts are to hand the president whatever powers he wants, to endorse a maximal expression of executive power no matter how “untethered” that flexing is from the facts on the ground. The long history and tradition of American wariness of military rule pales in comparison to right-wing judges’ enthusiasm to crown Trump king.

“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,’” Trump appointed Judge Ryan Nelson said to Oregon’s Senior Assistant Attorney General Stacy Chaffin Thursday. “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.”

I don’t like it either, but what you want the law to do, and what it does, are two different things. I learned long ago that, like nature, the law doesn’t give a wet snap for your desires.

What the 9th Circuit did is so standard it’s practically black letter law (ask your grandfather the lawyer). But first, recognize there are three levels of court.

The Supremes sit above it all, or try to, and often imagine they are making Solomonic decisions. I’m not saying that’s right, I’m saying it’s the custom. (It’s all bullshit, but people order their behavior according to all kinds of bullshit.)

The appellate courts are mindful of the Supremes. No judge likes to be reversed or overruled. They tend to take it personally. So appellate courts are particularly conservative, in the sense that they don’t want to stick their head above the parapet in case the Supremes fire back that they’ve exceeded their authority. Change in law should be glacially slow, which is what the doctrine of stare decisis is all about. (And the problem with the radical ideology of the Sinister Six.)  So appellate courts are slow to adjust to circumstances, because they are overseen (in a sense) by the Supremes; and because they have to keep the district courts in line and provide clear guidance.

That last is actually legitimately important. Note all the district courts complaining the “shadow docket” decisions are giving them no guidance at all. But the trial courts are where the facts are “found.” A term of art meaning “settled in.” So Judge Immergut looks at the facts, and all the government can produce is Trump’s tweets. His rambling, incoherent nonsense. This, she says, is “detached from reality.” Now, appellate courts can’t change findings of facts; but they can ignore them.

And what the 9th did was ignore the finding that the Emperor has no clothes, because while it’s true, they don’t want to be the first to establish that fact for a federal circuit. Immergut speaks for the case before her. The 9th Circuit panel speaks for…the 9th Circuit. And declaring the POTUS is detached from reality is just about one bridge too far.

Note the 7th Circuit agreed with the outcome of the 9th, but without the procedural issue of a failure to appeal an issue. Now two circuit agree the POTUS can nationalize the Guard under these circumstances, but can’t, in essence, ignore Posse Comitatus.

This is the victory you’re looking for, Josh. Take it.

The trial courts in Illinois and Oregon were right. But it will take more time than two of them to bring appellate courts around. Trump may well realize this, and decide to limit his exposure in the courtroom. Or he may go to the Supremes, and make them publicly and nakedly stand behind his authoritarian wishes. So far they’ve let him do what he wants to the federal government and government employees. With exceptions:

Lisa Cook is literally on the Federal Reserve board right now because SCOTUS has not allowed (at least for now) Trump to remove her. Trump is not able to use the Alien Enemies Act to deport people without judicial review because SCOTUS wouldn't let him.

— Dilan Esper (@dilanesper) October 13, 2025

Allowing Trump free rein here would involve issues of state sovereignty and even the 10th amendment. It would be extremely messy and, if the Courts really is concerned with its legitimacy, would certainly undermine it nationwide. So, are the appellate courts trying to hand Trump the keys to the kingdom?

No. They are considering the consequences of their actions. The courts don’t want to be the ones deciding the legitimacy of the crisis and of the response. That’s really not their role. Alternatively, they can’t allow the POTUS to use an imaginary crisis as grounds to usurp the constitutional order. There is a legitimate role for the courts somewhere in between, and that role requires careful modification of custom and precedent, not wholesale ideological decrees loosely rooted in medieval British law, and mostly just based in the power to overturn things.

We’ve got enough rampant ideology in the Supreme Court (and we don’t need it there). We don’t need a counterpoint ideology in the appellate courts. What we need is a steady application of the rule of law. Oftentimes that means the mills grind more slowly than we’d like. But they grind exceeding fine.

Leave the law review articles to the lawyers. Nobody else reads those, anyway.