[00:00:00] Speaker 01: The judges of the United States Court of Appeals for the Ninth Circuit. [00:00:05] Speaker 01: Hear ye, hear ye, all persons having business with the honorable, the United States Court of Appeals for the Ninth Circuit will now draw near. [00:00:13] Speaker 01: Give your attention and you will be heard, for this court is now in session. [00:00:19] Speaker 01: God save the United States and this honorable court. [00:00:26] Speaker 02: Welcome to the Ninth Circuit. [00:00:28] Speaker 02: Judge Beatty and Judge Graber and I are glad for your timely appearance and we know this is on a quick turnaround and we appreciate all the hard work that's gone into it. [00:00:37] Speaker 02: We're ready to proceed with argument in State of Oregon, City of Portland versus Donald J. Trump, case number 26-6268. [00:00:50] Speaker 02: We'll first hear from Mr. MacArthur. [00:00:53] Speaker 03: Thank you, Judge Nelson, and may it please the court, Eric MacArthur, for the federal government. [00:00:58] Speaker 03: I would like to reserve three minutes for rebuttal, if I may. [00:01:01] Speaker 03: For the second time in recent months, a district court in this circuit has entered a heretofore unprecedented order in joining the president from calling up the National Guard [00:01:16] Speaker 03: to protect federal personnel and property from violence aimed at thwarting federal law enforcement. [00:01:24] Speaker 03: The first order was swiftly stayed by this court and this order should be swiftly stayed as well. [00:01:31] Speaker 03: For months, the ICE [00:01:34] Speaker 03: The federal law enforcement officers who worked there have faced a steady stream of violence, threats of violence, and harassment from violent agitators bent on impeding federal immigration enforcement. [00:01:47] Speaker 04: Council, I'd like to ask a couple of questions, and I would appreciate having other council answer the same questions when it's their turn. [00:01:59] Speaker 04: And my first question is, what document is the declaration pursuant to section 12406? [00:02:08] Speaker 04: Is that the June 7th document signed by the president? [00:02:16] Speaker 03: So, I think there are a series of writings that the court can look to here. [00:02:20] Speaker 03: The first point that I would make is the statute doesn't actually require any writing contemporaneous or otherwise in order for the president to be able to invoke this statute, but there is here. [00:02:31] Speaker 03: There's the June 7th memorandum. [00:02:34] Speaker 03: There is the post on truth, social. [00:02:38] Speaker 03: I believe it was September 27th. [00:02:39] Speaker 03: Stating that the president was responding to a request that had been made by the Department of Homeland Security. [00:02:46] Speaker 03: That's another document that can court the court can look to is the. [00:02:52] Speaker 03: Security sent requesting assistance in Portland. [00:02:55] Speaker 03: There are further posts on social media in early October, further explaining the president's basis for the decision he made in late September. [00:03:04] Speaker 03: And then last, there is the recent memorandum activating the National Guard in Illinois, which also references the basis for the activation in Portland. [00:03:14] Speaker 04: My second question is, under the second prong of that statute, what is the meaning of a rebellion? [00:03:27] Speaker 03: Meaning of rebellion would be the plain meaning of that term that existed at the time this language was enacted. [00:03:33] Speaker 03: It was enacted in 1903. [00:03:36] Speaker 03: And so there are contemporary contemporaneous dictionaries. [00:03:40] Speaker 03: I think one defined the term to mean a deliberate organized resistance by force and arms to the laws and operations of the government. [00:03:50] Speaker 03: That's from Black's Law Dictionary in 1891. [00:03:53] Speaker 02: Council, can I ask about that? [00:03:56] Speaker 02: You're right that the current law was 1903, but it goes back to 1792. [00:04:00] Speaker 02: It seems like rebellion in this series of statutes would have a sort of developed meaning. [00:04:11] Speaker 02: Would it be improper to go back to earlier dictionary definitions or historical examples in analyzing the meaning of rebellion? [00:04:22] Speaker 03: Oh, I think that would be perfectly proper just now some to look historically how the term was understood and what are the historical examples in which that that language had been invoked to call it the garden. [00:04:33] Speaker 03: The key example here is, of course, the whiskey rebellion, which refutes the basis on which the district court held here that there was no. [00:04:42] Speaker 03: colorable factual basis for the president to conclude that there was a rebellion or danger of rebellion, because the court said there was no basis to conclude that any violence in Portland was aimed at overthrowing the entire federal government. [00:04:54] Speaker 03: Of course, no dictionary definition of the term rebellion requires that it be aimed at overthrowing the entire government. [00:05:01] Speaker 03: That wouldn't pick up historical circumstances like the Whiskey Rebellion. [00:05:06] Speaker 03: And I think it would lead to some pretty untenable results. [00:05:09] Speaker 03: For example, if you had [00:05:10] Speaker 03: a state governor who activated the National Guard and ordered them to shut down every ICE facility in the state, the president couldn't say that's a rebellion against the authority of the government and activate the National Guard because that's not aimed at overthrowing the entire government. [00:05:27] Speaker 04: My next question is regarding the third prong of the statute and what is your view of the meaning of the phrase the regular forces? [00:05:40] Speaker 03: So I think the regular forces are the forces that ordinarily enforce the laws that are at issue and that the president has concluded the regular forces are unable to enforce here. [00:05:51] Speaker 03: I think that would be the officers of the department of online security and federal protective service. [00:05:58] Speaker 02: Does that include local police officers as well or only the federal officers? [00:06:05] Speaker 03: I do not think that would include state and local officers. [00:06:09] Speaker 03: They are not charged with executing federal law. [00:06:11] Speaker 03: I think this is a statute that's solely focused on the federal forces that are at the president's disposal to execute the laws. [00:06:21] Speaker 04: I just want to follow up on that. [00:06:23] Speaker 04: The section that immediately precedes 12406 is, of course, 12405, which appears to conjoin the regular forces as meaning the Army or the Air Force. [00:06:41] Speaker 04: Well, from 1902, there's a Supreme Court case that appears to define the regular forces as the national standing professional army. [00:07:00] Speaker 04: What precedent would give it a broader meaning than that? [00:07:07] Speaker 03: I'm not sure it does have a broader meaning. [00:07:11] Speaker 03: I suppose it could be broader or narrower, but no one here has made the argument that the president has to first bring in the army, the Marines or the Air Force, the actual armed forces before calling up the National Guard. [00:07:26] Speaker 03: That was, of course, not the case in Newsom where the panel held in a published opinion. [00:07:32] Speaker 03: that subsection three of the statute was satisfied. [00:07:35] Speaker 03: And I think that would be pretty extraordinary to say that president has to use the actual armed forces before calling up the National Guard. [00:07:44] Speaker 03: For example, President Nixon did not do that when there was the postal strike and he relied solely on section 12406 to activate state National Guards to execute the postal laws. [00:07:55] Speaker 03: That I think would be inconsistent with historical precedent as well. [00:07:59] Speaker 02: Can I ask about that? [00:08:00] Speaker 02: You brought up the Nixon example. [00:08:05] Speaker 02: What was the basis for enforcing the laws of the United States? [00:08:11] Speaker 02: You mentioned postal laws. [00:08:12] Speaker 02: Are there laws that require mail to be delivered in a certain time? [00:08:19] Speaker 02: What were the laws that were at issue there? [00:08:22] Speaker 03: That's my understanding and my recollection of the executive order there was that President Nixon enumerated certain laws relating to the Postal Service and said that because of the strike, those laws could not be executed. [00:08:33] Speaker 03: And that was the basis for federalizing the National Guard. [00:08:37] Speaker 04: And my next question, which is again, for all parties to address, I hope, and that is what types of evidence are relevant in determining whether there is a colorable factual predicate? [00:08:56] Speaker 04: And specifically, I'm interested in how [00:08:59] Speaker 04: non-local evidence is relevant. [00:09:02] Speaker 04: Why is it important to know what happened in Los Angeles, Dallas, or Chicago when dealing with Oregon? [00:09:10] Speaker 04: And also, remote in time. [00:09:13] Speaker 04: The recent Newsom case dealt with events that [00:09:18] Speaker 04: predated the declaration by a day or two. [00:09:25] Speaker 04: So what relevance does evidence have that's remote in time? [00:09:32] Speaker 03: So to address the first part of your question, Judge Graber, I think the key evidence in this case is the declarations that we submitted below in connection with our opposition to the TRO motion that set forth the violence, the threats of violence that have occurred at this facility and the unsustainable and unsafe diversion of the government's limited protective resources that has been necessary to contain the violence there. [00:09:58] Speaker 03: I think you have to keep in mind [00:10:00] Speaker 04: So it sounds like you're relying on the local evidence. [00:10:05] Speaker 04: Am I right about that? [00:10:06] Speaker 04: The evidence having to do with Portland itself or Oregon itself. [00:10:11] Speaker 03: Certainly we are relying on all of the evidence, but the historical evidence from earlier this summer in Portland, for example, when the ICE facility had to be shut down for more than three weeks because of the violence and threats of violence, certainly informs what is the risk that the facility faces in Portland if you remove all of the protective forces that we've had to divert to contain that situation. [00:10:38] Speaker 03: So I think that is one of the key errors here that the district court judge made is taking this blinkered view of the statute, where we're only looking at what's happening in Portland in the days or weeks ahead of the federalization. [00:10:51] Speaker 03: And to your question about why is what's going on in the rest of the country relevant, that's because the government only has limited protective services at its disposal. [00:11:02] Speaker 03: They have had to call in 100, plus 115 federal protective services officers have been brought in from other locations and deployed to provide 24-7 protection of the Portland facility. [00:11:16] Speaker 03: And our declarations below explain why that is neither safe nor sustainable, that they're not equipped to deal with that sort of thing. [00:11:23] Speaker 03: How often is that done? [00:11:24] Speaker 04: Well, speaking of sustainable, that has that those folks have gone home. [00:11:27] Speaker 04: Am I right? [00:11:29] Speaker 03: No, no, no. [00:11:30] Speaker 03: Some of them have gone home. [00:11:32] Speaker 03: There are so many of them deployed there. [00:11:36] Speaker 03: And certainly the president can take into account the fact that they are being pulled away from their normal duty stations. [00:11:42] Speaker 03: They are being tied down and are not available to address the rising violence that's occurring in other cities focused on forwarding enforcement of the immigration laws. [00:11:54] Speaker 02: How often does that happen where forces are reallocated like this? [00:11:58] Speaker 02: Is that unusual or is that regular? [00:12:00] Speaker 03: I don't have historical data on this, but I have to imagine that a diversion of this magnitude is quite irregular. [00:12:09] Speaker 03: If you look at the declaration from the deputy director of, he says quite clearly that we are not equipped. [00:12:15] Speaker 03: To deal with this kind of ongoing sustained unrest while the officers are expected to be able to respond to emergencies. [00:12:23] Speaker 03: They are not expected to work 12 hours a day, 7 days a week, which has become the norm. [00:12:29] Speaker 03: That declaration states that is neither safe. [00:12:32] Speaker 03: nor sustainable. [00:12:34] Speaker 03: And that's, I think, something that the president can surely take into account in analyzing whether the regular forces are able to execute the laws. [00:12:42] Speaker 03: Judge Graber, to go back to your reference to the situation in Los Angeles, I think there are two main differences between what's happening in Portland and what's happening in Los Angeles. [00:12:54] Speaker 03: And neither is material to whether the president had a colorable basis, in fact, on law to invoke the statute here. [00:13:01] Speaker 03: Of course, one main difference is the violence was on a significantly larger scale in Los Angeles, but of course that was addressed here by the calibrated nature of the calling up of the guard. [00:13:14] Speaker 03: Only 200 members of the Oregon National Guard were called up compared to the 4,000 that were called up. [00:13:20] Speaker 02: How many guardsmen were actually deployed? [00:13:24] Speaker 02: I know that it said three or 4,000 could be called up, but how many were actually deployed in Los Angeles? [00:13:30] Speaker 03: I don't know the number. [00:13:32] Speaker 03: I think it was in the thousands that were actually deployed. [00:13:37] Speaker 03: is down in the low hundreds at this point. [00:13:40] Speaker 03: But the second difference that I wanted to focus on in Los Angeles is the president there made the decision to activate the guard immediately to deal with the acute threat, whereas here we first tried to manage the situation with the regular forces and the president only activated the national guard after it became clear that that was neither safe [00:14:04] Speaker 03: nor sustainable. [00:14:05] Speaker 03: And the way the district court judge looked at this, where she refused to consider any of the evidence from June or July or earlier in the summer and didn't dispute that the conditions may have been met to activate the guard then, effectively penalizes the president for using the National Guard as a last resort rather than as a first resort, and I think creates a bad incentive to do precisely that. [00:14:29] Speaker 04: I have one, what I think might be my final question to you, which is really for you and not for other counsel, and that is, with respect to the things that the district court did consider, are there any factual findings that you contend are clearly erroneous, and if so, precisely which ones? [00:14:54] Speaker 03: I think the answer that just graver is no, because I don't think there is a dispute about any of the relevant facts. [00:15:01] Speaker 03: I think the question is whether the undisputed facts, particularly the undisputed facts in the government's declarations, suffice to establish a colorable basis for. [00:15:11] Speaker 03: invoking section 12406. [00:15:13] Speaker 04: So let me just be sure I understand your answer. [00:15:16] Speaker 04: You are not contending that any of the district court's factual findings are clearly erroneous. [00:15:22] Speaker 04: You're contending that she should have considered additional facts or come to a different conclusion, but you're not contending that any of the findings she made are clearly erroneous. [00:15:32] Speaker 04: Is that a fair summary? [00:15:34] Speaker 03: At least not in so far as for stating that accident occurred on why date. [00:15:39] Speaker 03: We're not disputing any of that if we're getting beyond whether. [00:15:42] Speaker 03: Certain facts occurred to what's sort of the risk that's presented by that and whether that risk suffices. [00:15:48] Speaker 03: To invoke the statute, I think there were not. [00:15:50] Speaker 03: in the circumstance where we have a factual finding, that's application of law to facts. [00:15:57] Speaker 04: Is the assessment of risk as distinct from the effect of the amount of risk, is that a factual finding? [00:16:07] Speaker 04: In other words, if someone, this is just a hypothetical, if someone says, [00:16:14] Speaker 04: The person was driving at eight miles an hour and that does not present a serious risk of, you know, running over a pedestrian is the assessment of risk that stems from [00:16:29] Speaker 04: the underlying fact a factual conclusion or a legal conclusion? [00:16:35] Speaker 03: I think in certain certain certain circumstances an assessment of risk could be a factual conclusion. [00:16:40] Speaker 03: I don't think we have that here. [00:16:41] Speaker 03: I think what the district court said is that future risk is simply irrelevant. [00:16:46] Speaker 03: that you only can look to what's actually happening. [00:16:48] Speaker 03: I think that clearly has to be wrong because future risk dictates what regular forces have to do now to counteract that future risk. [00:16:58] Speaker 03: And that is why we've had to have so many protective services officers at this facility 24 seven in a way that's neither safe nor sustainable. [00:17:07] Speaker 02: Can I ask about you? [00:17:08] Speaker 02: You've made [00:17:10] Speaker 02: And by the way, I know you've asked for time. [00:17:12] Speaker 02: We'll give you enough time to answer all of our questions. [00:17:16] Speaker 02: It may take each of you over the allocated times. [00:17:20] Speaker 02: I wanted to ask about the reviewability because you've made an argument that this is just not reviewable by the courts. [00:17:27] Speaker 02: And I understand your argument to be based on Martin, which has some pretty strong language that this is expressly within the discretion of the president. [00:17:38] Speaker 02: Newsome didn't adopt that argument. [00:17:42] Speaker 02: To what degree are we bound by Newsome that this is reviewable? [00:17:48] Speaker 03: So I have not found any circuit precedent that speaks [00:17:53] Speaker 03: In the East Bay case, the court said that a published panel state decision may be binding on future panels as to the same issue. [00:18:03] Speaker 03: I think I can take that off the table. [00:18:06] Speaker 03: We have preserved that argument. [00:18:08] Speaker 03: We do think it's correct. [00:18:09] Speaker 03: I will certainly be taking a run at the News and Merits panel in a couple of weeks to try to persuade them that that's the one part of their opinion. [00:18:15] Speaker 03: I think they got got wrong, but for purposes [00:18:17] Speaker 03: of resolving this motion today. [00:18:19] Speaker 03: I think you can take that as the law of the circuit and ask whether we meet the deferential standard of review. [00:18:28] Speaker 02: Can I just ask one follow-up question on that though because this is something that I would be interested in your view of the history of the statutes because in 1792 there was some review, it didn't look like it was judicial review, but there had to be a pre-clearance [00:18:44] Speaker 02: by a justice of the Supreme Court. [00:18:47] Speaker 02: Then in 1795, that provision was taken out. [00:18:50] Speaker 02: In 1831, the statute gave total, expressly gave total discretion to the President of the United States. [00:18:59] Speaker 02: And then in our current statute, 1903, that total discretionary language was taken out. [00:19:07] Speaker 02: I mean, maybe you'll make that argument in the Newsome case, but I didn't see Newsome walk through that statutory history. [00:19:15] Speaker 02: And it strikes me that that suggests that there might be some reviewability here based on the change between the 1831 statute and the 1903 statute. [00:19:26] Speaker 03: So the reason I don't think that's right, Judge Nelson, is because I think you should compare the language of the statute as it exists today to the language of the statute in Martin and subsequently in Luther versus Borden. [00:19:38] Speaker 03: And it's the exact same language. [00:19:39] Speaker 03: The statute is structured the exact same way. [00:19:41] Speaker 03: It's whenever, in a set of conditions, the president may activate the National Guard. [00:19:47] Speaker 03: and the court in Martin said that that was that statute vested in the president's sole and exclusive judgment whether the statutory preconditions were met. [00:20:00] Speaker 03: And to the extent Martin left any uncertainty about whether that was binding just on subordinate military officials or instead also on the courts, I think that was cleared up in Luther versus Borden where the court quite clearly applying Martin said that that was conclusive even on the courts. [00:20:16] Speaker 02: So, and just one, maybe you've already answered this, but so Martin was binding in 1831. [00:20:23] Speaker 02: So with that language that was expressly put in the 1831 statute, in your view would have been superfluous and removing superfluous language in 1903, in your view just had no effect. [00:20:37] Speaker 03: I think that's right. [00:20:38] Speaker 03: I mean, we don't know why that language may have been removed. [00:20:41] Speaker 03: They may have removed it because they thought it was unnecessary in light of the existing precedent from Martin Luther and Congress enacted that statute in 1903 against the backdrop of those precedents. [00:20:52] Speaker 03: And ordinarily, we presume that when Congress takes language that has received a construction from the United States Supreme Court and replicates it in a new statute, it imports that settled construction of [00:21:05] Speaker 03: statute and I for that reason I think both as a matter of vertical stare decisis a lower court is bound by Martin and [00:21:12] Speaker 03: and Luther, and that is the correct interpretation of the statute because of that principle of interpretation. [00:21:19] Speaker 03: But again, I don't think this panel needs to get into that here. [00:21:21] Speaker 03: I think the likelihood of success on the merits in this case comes down to two questions that I'd just like to crystallize for the court. [00:21:30] Speaker 03: One of them about the law, one of them about the facts. [00:21:34] Speaker 03: The legal question is whether section 12406 [00:21:38] Speaker 03: colorably authorizes the president to call up the National Guard when violence and threats of violence directed at federal officials and facilities has significantly impeded federal law enforcement and required an unsustainable diversion of the regular forces in order to contain it. [00:21:57] Speaker 03: That's the legal question. [00:21:58] Speaker 03: The factual question is whether the facts of record here create a colorable basis to believe that that is the situation in Portland. [00:22:08] Speaker 03: questions is quite clearly yes. [00:22:11] Speaker 06: I'd like to ask you a couple of questions. [00:22:13] Speaker 06: One is to go to the factual issues. [00:22:17] Speaker 06: There is a statement in Deputy Director Cantu's declaration that there are 776 federal protective service [00:22:27] Speaker 06: officers and only 497 are inspectors, but it wasn't clear to me what that means. [00:22:34] Speaker 06: Does that mean that only 497 officers are available nationwide to protect federal property? [00:22:42] Speaker 06: Is there a distinction between the 776 and the 497? [00:22:47] Speaker 03: I had understood and I would have to go back and look specifically at the language, but my recollection and the way I'd understood that was those are the officers who have the requisite training to be able to deal with these sort of civil unrest and violent protests and the others do not. [00:23:02] Speaker 06: All right, so when he says 115 federal protective service officers were deployed, you're saying that that means out of the 497 available to protect the federal building, which means roughly 25% of the officers available nationwide were deployed. [00:23:19] Speaker 03: That's how I understood it, Judge Patey. [00:23:22] Speaker 03: And I think that's why he also said that this is just not sustainable. [00:23:25] Speaker 06: So the other question I have is more about our procedural posture. [00:23:28] Speaker 06: You saw the order on the administrative stay and there is a second TRO that the district court entered after the first and after your notice of appeal was filed. [00:23:39] Speaker 06: And you are here before us now asking for a stay pending appeal. [00:23:45] Speaker 06: But don't we have the same issue that even if we were to stay the first order, the second is still in place? [00:23:51] Speaker 03: There is that same issue and I do want to be clear that the administrative stay that was granted doesn't from our perspective perspective, take the time pressure off getting a full state pending appeal because what we need is a full state pending appeal. [00:24:06] Speaker 03: so that we can then immediately go to the district court and say in light of that the district court should dissolve that second TRO because the second TRO rests on the exact same basis as the first TRO. [00:24:18] Speaker 03: So if this court grants a state pending appeal concluding that interim relief here was not warranted because the government is likely to prevail on the merits or because there's no irreparable harm or because of the sliding scale or whatever then I would expect the district court to immediately dissolve that second TRO and if the district [00:24:39] Speaker 03: Would you have run the time? [00:24:42] Speaker 02: I mean, you haven't even filed a notice of appeal. [00:24:45] Speaker 03: I have a follow-up question to that though. [00:24:58] Speaker 04: We are to decide on the state of the world as it exists today. [00:25:05] Speaker 04: And as it exists today, one of the things that you have the burden to demonstrate here, I think, is harm, that there's harm. [00:25:17] Speaker 04: And if the federalized national guard members cannot be deployed, which is the state of affairs today, what is the harm? [00:25:33] Speaker 04: That you are suffering. [00:25:35] Speaker 04: I mean, even if we grant the stay right now, I guess I have trouble seeing how there is harm if nothing changes. [00:25:47] Speaker 03: Well, the harm certainly is that we cannot deploy the guard members to address the risks of violence. [00:25:54] Speaker 04: That's right. [00:25:54] Speaker 04: But that's not because of this case at this point. [00:25:58] Speaker 04: It's because of the second TRO. [00:26:02] Speaker 03: It's because of the terms of both of the TROs, which rest on precisely the same reasoning. [00:26:09] Speaker 03: And if the panel thinks that in order to establish a reputable harm, we need to bring that second TRO up for appeal now and get it consolidated, we can certainly do that. [00:26:19] Speaker 03: Our judgment had been that we didn't need to burden the court with that because [00:26:23] Speaker 03: If the court grants a state pending appeal here, that should be binding on that second TRO, and it should be dissolved by the district court. [00:26:30] Speaker 03: And so that would redress our irreparable harm. [00:26:33] Speaker 02: So can I ask about the 14-day nature? [00:26:35] Speaker 02: That's also different than California. [00:26:37] Speaker 02: California didn't have the district court, did not put the 14 days in there. [00:26:43] Speaker 02: Does that mean we need the rule before the expiration of that? [00:26:47] Speaker 02: I mean, do we know whether the district court is going to extend that? [00:26:50] Speaker 02: Can the district court extend it? [00:26:54] Speaker 02: If we don't rule within 14 days, does this all become moot? [00:26:59] Speaker 02: What's your view on all that? [00:27:00] Speaker 03: So the district court has scheduled a hearing, I believe on October 17th, which is the day before the TRO expires on October 18th to decide whether or not to extend the TRO for an additional 14 days. [00:27:13] Speaker 03: If the TRO does expire either on the 18th or after it's extended for another 14 days, that would render this appeal moved. [00:27:24] Speaker 03: Hopefully our view is that the panel should grant the state pending appeal well in advance of any of that. [00:27:30] Speaker 03: And that would give guidance then to the district court. [00:27:34] Speaker 03: The court has also scheduled a preliminary injunction hearing for the end of the month on October 29th. [00:27:38] Speaker 03: And I think if the court granted a state pending appeal here, the court's analysis of the likelihood of success on the merits and the balancing of the equities would inform the preliminary injunction analysis. [00:27:49] Speaker 03: and hopefully preclude the grant of a preliminary injunction, or if not, at least require the district court to stay any preliminary injunction that's granted. [00:27:58] Speaker 03: Otherwise, we're going to be right back up here repeating everything that we've just done. [00:28:04] Speaker 02: Okay. [00:28:05] Speaker 02: Any other questions by my colleagues? [00:28:07] Speaker 02: No. [00:28:07] Speaker 02: Thank you. [00:28:08] Speaker 02: We'll still give you three minutes for rebuttal. [00:28:10] Speaker 00: Thank you. [00:28:15] Speaker 05: May it please the court and council, Stacey Chaffin on behalf of the plaintiffs. [00:28:19] Speaker 05: The president's 12406 determinations are entitled to great deference, but that deference has a limit, and that limit is this case. [00:28:28] Speaker 05: Where the president's determinations are untethered from reality, they cannot represent a colorable assessment of the facts within a range of honest judgment. [00:28:37] Speaker 05: I'd like to take first, Judge Graber, your question about what document represents the president's determination. [00:28:45] Speaker 05: And the answer is that we don't know. [00:28:48] Speaker 05: It's very unclear what document the president relied on to authorize the federalization of the National Guard. [00:28:56] Speaker 05: The two documents that we do have are the June 7th memorandum, which was issued in response to the escalating ICE protests in Los Angeles. [00:29:05] Speaker 05: That memo is specifically referenced in the September 28th memorandum from Secretary Hegseth that mobilized the Oregon National Guard. [00:29:14] Speaker 05: That memo that was issued not only relies on the June 7th memo, it references it and then it also attaches the June 7th memo. [00:29:23] Speaker 05: But that memo was issued four months prior. [00:29:26] Speaker 02: But you're not suggesting, I mean, you have raised an APA claim, but you're not suggesting that we need some formal order that represents final agency action by the president, are you? [00:29:39] Speaker 05: Not at this time, and we're not making arguments regarding the form of the order itself, but if the president was relying on the June 7th memorandum, that was both not relating to Portland and it's exceptionally stale by the time that the troops or the National Guard was actually federalized in September. [00:30:00] Speaker 05: There's a significant deficit of time. [00:30:04] Speaker 02: So under your theory, then we can't consider any of the facts because the president didn't mention them. [00:30:10] Speaker 02: I mean, what, I don't know what the impetus for your argument is on that. [00:30:16] Speaker 05: Well, if the president, the June 7th memorandum, if that is the basis for the federalization of the national troops, it has nothing to do with Portland and it only had to do with the circumstances that were happening. [00:30:31] Speaker 05: at that time in June. [00:30:33] Speaker 04: Council suggested though that the social media post that said there's war in Portland and go forth and fix it is sort of an addendum, if you will, or a direction to apply the June 7th memo to Portland. [00:30:59] Speaker 04: What's your response to that? [00:31:02] Speaker 05: Certainly the statute doesn't identify for us the form that the president's determination needs to take. [00:31:08] Speaker 05: And if the defendants are relying on a social media post, that social media post still isn't, it doesn't represent a colorable assessment of the facts within the range of honest judgment. [00:31:20] Speaker 05: Within that document, the president references Portland as war ravaged, which we all know is not accurate. [00:31:28] Speaker 05: And then it also calls Portland under siege, also an inaccurate statement. [00:31:33] Speaker 05: Because these are inaccurate statements, they can't form the basis of a colorable argument under 12406. [00:31:40] Speaker 02: Well, that may be true, counsel, but you're not denying, I mean, what we heard from your opposing counsel is there's really not a lot of dispute in the facts. [00:31:50] Speaker 02: There might be dispute as to which facts are relevant. [00:31:57] Speaker 02: Do you think there's a dispute of facts as to what's happened in June, July, August, September? [00:32:04] Speaker 02: I mean, are there points in time where you think you have a disagreement on what's actually happened with opposing counsel? [00:32:12] Speaker 05: I think we disagree with the framing, but I would direct this court to the district court's findings regarding those facts. [00:32:18] Speaker 05: The district court found that the Portland ICE facility protests were small, less than 30 people, largely sedate and generally peaceful. [00:32:26] Speaker 02: Okay, hold on. [00:32:28] Speaker 02: I mean, that's clearly erroneous because there's clearly been protests that were above 30. [00:32:35] Speaker 02: I mean, unless you're trying to limit it to certain time periods. [00:32:38] Speaker 02: We have evidence in the record that there were protests as much as 200. [00:32:42] Speaker 05: It was generally small. [00:32:46] Speaker 04: I think there were three instances where it was large over that time period, but when we're talking about how to, as you say, frame the facts, can you go on to answer my other question, which is what is a rebellion and what is the standard that we should be [00:33:12] Speaker 04: applying. [00:33:14] Speaker 05: A rebellion is an open, organized or armed resistance to an established government or an attempt to change the government or the leader, usually through violence. [00:33:24] Speaker 05: That is the appropriate definition that this court should adopt in this case. [00:33:27] Speaker 04: And where does that come from? [00:33:29] Speaker 05: The same, the older definitions in Webster's. [00:33:34] Speaker 05: And I would highlight for the court that the first time that rebellion was added was in 1860 warrant [00:33:40] Speaker 05: 1861, and that was shortly after the Confederacy declared independence and the first shots were fired at Fort Sumter. [00:33:47] Speaker 05: And it's with that context in mind that we should interpret the word rebellion. [00:33:52] Speaker 06: And it certainly isn't- What about the whiskey rebellion? [00:33:56] Speaker 02: the whiskey rebellion certainly comes into play as well, but I think with- Could that inform our definition of rebellion or was that the president acted under some different provision? [00:34:13] Speaker 05: I'm sorry, I don't know the exact answer to that question, but I can say that the defendant's proposed definition here is so broad that it could potentially encompass a significant amount of protected speech and protest activity. [00:34:27] Speaker 02: In their brief- I mean, my concern is, and that may be true, but your definition and perhaps the definition applied by the district court seems so narrow, [00:34:41] Speaker 02: that it doesn't even comport with the vast exercise, I shouldn't say vast, it hasn't been that many, but with those incidences where the National Guard has been used or the militia has been used, it wouldn't satisfy the rebellion prong in those either. [00:34:59] Speaker 05: And I can't specifically point to the situations where the rebellion prong has been utilized, but I do know that in Newsom, this court identified that both invasions and rebellions are unusual and extreme emergencies that threaten the normal operation of civil government. [00:35:16] Speaker 05: So it needs to be this significant, intense, large-scale situation that really [00:35:25] Speaker 05: It has such a large impact on the fabric of the country. [00:35:29] Speaker 05: I mean, if we're comparing it to an invasion from a foreign power, that's something that goes to the heart of the safety of our country. [00:35:37] Speaker 05: And when it explains also why the president has deference in these circumstances, that he's expected to rely, respond to sudden emergencies that are upon great occasions and under circumstances, which may be vital to the existence of the union. [00:35:54] Speaker 05: It is under that framework that we define the phrase rebellion or even threat of rebellion. [00:36:00] Speaker 04: Oh, I'm sorry. [00:36:03] Speaker 04: I was going to ask you to move to my question concerning what type of evidence is relevant, particularly in terms of time, how current the proclamation or [00:36:18] Speaker 04: memo of June 7th refers to current circumstances that would justify mobilization. [00:36:30] Speaker 04: So what in your view is the appropriate timeframe to be looking at for determining whether the statutory standard is met? [00:36:45] Speaker 05: from a larger perspective that really is gonna depend on the circumstances. [00:36:50] Speaker 05: And we're not asking this court to create a very specifically defined set of factors that need to be evaluated in every case. [00:36:57] Speaker 05: But in this case, when the president has authorized the federalization of the National Guard in Oregon, we're asking this court to look at the circumstances around when that happened. [00:37:09] Speaker 04: So do we look from June 7th forward or do we look only at September or something else? [00:37:19] Speaker 05: It would make sense to, it's reasonable to look at around the time period when the National Guard was actually federalized. [00:37:27] Speaker 05: What happened in June? [00:37:29] Speaker 02: And we acknowledge- Isn't June around the time period of when the National Guard was federalized? [00:37:34] Speaker 05: It was four months prior. [00:37:35] Speaker 05: And that is significant because there can be, and there was a very large Delta between what was going on in June and what was actually going on when the president- So could the president have [00:37:50] Speaker 02: in your view, nationalize the guard in June? [00:37:55] Speaker 05: I think we'd be having a different conversation and it would certainly be a closer call. [00:37:59] Speaker 02: And so the president loses his right to do that in your view because he waits to see how things turn out on the ground. [00:38:07] Speaker 05: I think in the moment, the president can make the decision to manage the situation with the normal forces. [00:38:15] Speaker 05: And here what we have is even that situation in June, I point the court to, I think it was June 14th is probably the worst of the circumstances that happened. [00:38:27] Speaker 05: And that day, [00:38:29] Speaker 05: The threat of violence from the protesters lasted two hours. [00:38:34] Speaker 05: And it's with the use of normal forces that they could stop the kind of incursion of the protesters, push them back, and everyone kind of had the safety that was necessary with using the normal forces. [00:38:47] Speaker 05: That stands in stark contrast to what happened in California. [00:38:51] Speaker 05: In California, there was a span of two days where they had consistent and increasing protest activity, where they were pinning down officers, throwing concrete chunks. [00:39:02] Speaker 05: They used dumpsters as battering rams to breach the facility. [00:39:05] Speaker 05: And the next day, the confrontation lasted for another seven hours. [00:39:09] Speaker 05: Protesters boxed in officers threw Molotov cocktails, mortar-style fireworks rocks. [00:39:15] Speaker 05: They blocked traffic and burned a vehicle. [00:39:17] Speaker 02: That's a little bit of the irony here is that because the president acted in June in LA, I mean, I don't know that we have the, I don't know, but it seems like we don't have the same level of violence going on in LA right now. [00:39:32] Speaker 02: But the president acted when there was violence, and you're saying, well, if you don't hit it within a narrow window, you lose your right. [00:39:39] Speaker 02: That just seems unnaturally constrained. [00:39:42] Speaker 02: I mean, what the president did was bring in 115 FPS officials, and that has quelled the violence, to some degree, it seems. [00:39:55] Speaker 02: But it hasn't abated it. [00:39:57] Speaker 02: I mean, there's still violence going on, right? [00:39:59] Speaker 05: Well, what we have is the finding from the district court that the federal law enforcement officers unaided by military forces were capable of not only quelling the violence in June, but also preventing it through September. [00:40:12] Speaker 06: I'd like to ask you about some specific facts that I don't think are disputed. [00:40:17] Speaker 06: So the facility was forced to close. [00:40:19] Speaker 06: It was inoperable for almost a month from June 13th to July 7th. [00:40:25] Speaker 06: And the declarations from the Director of the Federal Protective Services and the Field Operations Director from DHS state that the facility only reopened because of a surge of 115 Federal Protective Services officers to Portland, right? [00:40:45] Speaker 06: Those are facts that occurred, but that the district judge didn't consider because she apparently viewed them as out of time, that this had occurred. [00:40:53] Speaker 06: Are those not facts that are relevant for the president to determine? [00:40:57] Speaker 06: the threat and whether there's a threat to DHS being able to enforce the 400 laws it's tasked with enforcing. [00:41:06] Speaker 06: I mean they couldn't operate a facility. [00:41:08] Speaker 06: I don't know that that ever happened in LA. [00:41:10] Speaker 06: There were attempts to breach a facility. [00:41:12] Speaker 06: Here a facility was actually closed for almost a month and the record includes more than one, at least two attempts to burn the building down. [00:41:19] Speaker 06: and vandalizing the building so that it's difficult for the officers to move in and out of the building and increases danger. [00:41:28] Speaker 06: And the building is now currently boarded up and the city has told DHS after remove the boards. [00:41:34] Speaker 06: So that means the facility presumably will be inoperable again. [00:41:37] Speaker 06: So why is all of that irrelevant to the president's decision to federalize the National Guard? [00:41:44] Speaker 05: Well, I'd like to push back a little bit on the reframing here. [00:41:49] Speaker 05: What we have is in early June, the facility was closed for two weeks during- Specific dates, June 13th through July 7th. [00:41:58] Speaker 06: That is not two weeks, it's about three and a half. [00:42:01] Speaker 06: And I think it's properly characterized as nearly a month, but the facility was indeed closed, but the district judge didn't consider it because it was in June. [00:42:08] Speaker 06: So if I understand your position, only things that happened like September, [00:42:14] Speaker 06: 24th, 25th, 26th. [00:42:15] Speaker 06: I mean, a very small window of time. [00:42:17] Speaker 06: Those are the only days that the president could have legally considered when deciding whether there was a threat to the enforcement of law. [00:42:27] Speaker 05: Well, if we're talking about the third prong, the inability to execute laws with the regular forces, that is a current temporal requirement. [00:42:37] Speaker 06: Okay. [00:42:37] Speaker 06: So what is your basis for saying that? [00:42:39] Speaker 06: Because I didn't think it knew some, but what is it, where is it that it says there's a, they talked about the facts there, which happened to include events that had occurred in the preceding days. [00:42:50] Speaker 06: Here, the president relied on, according to the declarations that have been presented, on the facts leading up to the order from June, July and August and September. [00:43:04] Speaker 06: So there's a period of a few months where things were unfolding on the ground. [00:43:08] Speaker 06: And what I think you're saying is we can't consider any of that, that it should only be a few days. [00:43:13] Speaker 06: But what is your basis for saying that? [00:43:15] Speaker 06: The text of the statute is the basis. [00:43:17] Speaker 05: So if we look at the third prong, it says the president is unable, that is a current inability to execute with the regular forces, the laws of the United States. [00:43:29] Speaker 02: And is that a day by day? [00:43:31] Speaker 02: So that, I mean, if we said forces are allowed, [00:43:37] Speaker 02: And then what we come back the next day and say, oh, well, you got it under control. [00:43:41] Speaker 02: Now they're not allowed. [00:43:42] Speaker 02: Then it goes back up. [00:43:44] Speaker 02: Oh, they're allowed. [00:43:44] Speaker 02: I mean, it just seems like such a tortured reading of the statute. [00:43:48] Speaker 02: I mean, I'm not even sure President Lincoln would have been able to bring in forces when he did because he'd have to wait. [00:43:54] Speaker 02: You know, if he didn't do it right after immediately after Fort Sumter, your argument would be, oh, things are OK right now. [00:44:02] Speaker 04: What is the effect of the June 7th authorizations statement that the National Guard should be performing federal functions at locations where protests against these functions are occurring or likely to occur based on current threat assessments? [00:44:28] Speaker 04: So does that limit [00:44:32] Speaker 04: how we or how, uh, secretary, uh, Hegseth would have had to consider what was currently, uh, appropriate. [00:44:44] Speaker 05: Yes. [00:44:45] Speaker 05: If the June 7th memorandum is part of this court's evaluation of the president's determination. [00:44:50] Speaker 05: It is limited by the current situations. [00:44:52] Speaker 05: And I would also again just direct this court back to the text of the statute, which there is an expectation that the circumstances are going to be evaluated as they happen. [00:45:03] Speaker 05: And that makes sense because [00:45:05] Speaker 05: These are emergencies. [00:45:06] Speaker 05: These are unusual circumstances that would immediately require the president's attention and response. [00:45:12] Speaker 05: If these are circumstances that are so significant that they could challenge kind of the fabric of our nation, the threat of invasion, they need an immediate response. [00:45:23] Speaker 05: And there isn't an attempt to penalize the president for waiting. [00:45:28] Speaker 05: there is a requirement that the circumstances as they happen be so significant that we need to federalize the National Guard. [00:45:38] Speaker 02: Actually, for number three, I don't think that's true. [00:45:42] Speaker 02: For three, it says the president with regular forces can't execute the laws. [00:45:51] Speaker 02: I mean, I'm sort of trying to figure out how a district court [00:45:58] Speaker 02: of any nature is supposed to get in and question whether the president's assessment of executing the laws is right or wrong. [00:46:08] Speaker 05: Well, this court has already concluded that there is judicial review. [00:46:12] Speaker 02: I understand that, but it's also great deference. [00:46:15] Speaker 02: And I mean, here it has to be colorable. [00:46:19] Speaker 02: And so when the president comes in and says, look, we've got 115 FPS forces that aren't normally in Portland, and we've had to move them, this is straining [00:46:29] Speaker 02: our ability to execute the laws. [00:46:32] Speaker 02: I don't understand how you can question the behind the scenes to say, oh no, that can't be right. [00:46:38] Speaker 02: I mean, we don't have a view into what laws are trying to be executed or how they're being impinged. [00:46:47] Speaker 02: But why isn't that colorable? [00:46:50] Speaker 05: Because it's not true. [00:46:52] Speaker 02: It's not true that 115 FPS [00:46:57] Speaker 02: forces have been there since it reopened in July? [00:47:01] Speaker 05: Well, we do have in the record that a lot of the search forces were returned before the president's announcement. [00:47:08] Speaker 05: So I understand that these declarations kind of, they discuss the worst of the circumstances, which I understand, but they're also written by supervisors who don't work in Portland. [00:47:19] Speaker 05: They're from outside of the city. [00:47:22] Speaker 02: I have absolutely no idea. [00:47:23] Speaker 02: The district court said the same thing. [00:47:25] Speaker 02: I have absolutely no idea what that has to do with anything. [00:47:28] Speaker 02: I mean, you want to focus on what's going on outside and it doesn't rise to this level. [00:47:34] Speaker 02: But that's not what the statute says. [00:47:37] Speaker 02: The statute says the president can't execute the laws. [00:47:40] Speaker 02: That's an internal decision making. [00:47:43] Speaker 02: And whether there's a ton of protests or low protests, they can still have an impact on his ability to execute the laws. [00:47:51] Speaker 05: But this court has said that minimal interference isn't enough to raise to the level of an inability to execute laws. [00:47:58] Speaker 05: And that's what we have here. [00:47:59] Speaker 05: We have, yes, in June, there were more intense protests, but we have the district court identifying that the normal forces were able to manage those protests, which is within the job responsibilities of FPS. [00:48:15] Speaker 05: Generally, this is what we do. [00:48:16] Speaker 05: They do the you have from the declaration just seems to be the wrong analysis. [00:48:21] Speaker 02: And the district court did this. [00:48:23] Speaker 02: The district court said, well, look, people who acted violently were arrested, so everything's good. [00:48:30] Speaker 02: But that's not what the statute says. [00:48:31] Speaker 02: The statute says the president can't execute the laws. [00:48:36] Speaker 02: And I'm just trying to figure out why we're giving [00:48:39] Speaker 02: you know, district courts the ability to say, well, this is what I see on the outside. [00:48:44] Speaker 02: So therefore, I'm going to transfer that on to what's going on behind the scenes. [00:48:49] Speaker 02: And we have declarations that say that it is impeding their ability to perform their function. [00:48:54] Speaker 05: We have declarations that say we're short staffed. [00:48:57] Speaker 05: We're having administrative difficulties because we don't have enough people. [00:49:02] Speaker 05: That is not a reason to bring the military into the streets of Portland or any other city in the United States. [00:49:09] Speaker 05: There needs to be something more than a deficit of employees to raise to the level of such a significant incursion into the sovereignty of a state. [00:49:19] Speaker 05: It needs to be more. [00:49:21] Speaker 06: And this is the case. [00:49:22] Speaker 06: Into the streets, the deployment is limited just to the protection of federal personnel and federal property. [00:49:30] Speaker 06: So I saw quite a bit of that language in the motions. [00:49:35] Speaker 06: suggesting that National Guard members would be deployed to patrol the streets of Portland, which is, I don't think the government has ever said that that is the intent. [00:49:45] Speaker 06: The idea is to protect the building so that it can remain open for federal personnel. [00:49:54] Speaker 05: What we do have though is a history of a very expansive and almost strained reading from the government of the district court orders. [00:50:03] Speaker 05: And it would, because this authorization is to protect any federal government location, any federal personnel, federal personnel go throughout the city to [00:50:14] Speaker 05: execute whatever their mission is. [00:50:16] Speaker 05: And there's no, as of the drafting, there's no specific limitation that they're going to only be in. [00:50:22] Speaker 02: Why would we enjoin it upfront? [00:50:24] Speaker 02: I mean, I want to be clear. [00:50:26] Speaker 02: I'm very sensitive to the slippery slope argument that's being made here and the slippery slope argument that's being made in LA and around the country. [00:50:34] Speaker 02: I mean, this is something that, I mean, clearly the founders were concerned about. [00:50:39] Speaker 02: There's been a lot of debate about how this should be used. [00:50:43] Speaker 02: So I'm not trying to diminish that. [00:50:45] Speaker 02: It may well be that the forces are used in an improper way, but we don't have any evidence of that right now. [00:50:52] Speaker 02: All we have is a document that says we have a federal facility under attack or that violence has been, you know, [00:51:04] Speaker 02: forced it to close down, and we want to protect it. [00:51:08] Speaker 02: That doesn't strike me as a glaring overuse on its face. [00:51:16] Speaker 02: Now, if what happens is what you're suggesting, that they do engage in law enforcement activities, then obviously we have another problem. [00:51:26] Speaker 02: But that's not even what the district court found. [00:51:29] Speaker 02: I mean, you couldn't find it. [00:51:30] Speaker 02: There's no deployment at this point. [00:51:32] Speaker 05: Well, certainly, I mean, we're not talking about like the violations of the Posse Comitatus Act at this point. [00:51:37] Speaker 05: It is a bit speculative, but what we have is from Newsom, we know that this court has a role in evaluating the president's determinations. [00:51:53] Speaker 05: There is a direction that is this court's role. [00:51:57] Speaker 05: This is the case, though, that represents the outer limits of the president's authorities. [00:52:02] Speaker 05: We have in the month leading up, not even the week, if we look at the entire month of September, the district court found there was one instance in the kind of the weeks leading up where protesters shine flashlights in the eyes of drivers. [00:52:17] Speaker 02: Well, I mean, if that's true, then I think we've got a problem because I don't think that's what the record says. [00:52:24] Speaker 02: I mean, if the district court really said that's all that happened in September, then the district court's clearly erroneous. [00:52:29] Speaker 02: I didn't think the district court said that. [00:52:30] Speaker 02: I thought the district court actually detailed more than just one incident in September where flashlights were shined in the eyes. [00:52:38] Speaker 05: Well, Your Honor, that's the record, though. [00:52:41] Speaker 02: Even if we go back to... Well, we'll have to go into it. [00:52:45] Speaker 02: But I don't understand the record to be that for September. [00:52:48] Speaker 02: I understand it to have gone down, but not that there was one incident and that was it. [00:52:54] Speaker 05: There were certainly protests throughout the month of September, but they were, as I earlier mentioned, and the district court found, small, less than 30 people, largely sedate, generally peaceful. [00:53:09] Speaker 05: That's what was happening in September. [00:53:12] Speaker 05: So there was an incident on Labor Day on September 1st, [00:53:15] Speaker 05: where there were increased protests, 125 people were involved in the activity. [00:53:20] Speaker 05: But what we have is the statement from FPS that they were not concerned with the group. [00:53:25] Speaker 05: That's at 46-1. [00:53:26] Speaker 05: This is the day when the guillotine was displayed, but they arguably protected political speech. [00:53:34] Speaker 05: There were 40 people who remained after the larger group left, and they did arrest a few. [00:53:39] Speaker 05: After that, you have September 2, completely uneventful. [00:53:44] Speaker 05: September 3, there was a drone flying. [00:53:46] Speaker 05: There were some altercations. [00:53:48] Speaker 05: Everything was managed. [00:53:49] Speaker 05: That's the consistency throughout the month of September. [00:53:53] Speaker 05: And there were occasions when there might be, you know, a larger number of protesters, but they were generally calm and sedate. [00:54:04] Speaker 05: And any of the sporadic and kind of more minimal criminal activity was appropriately handled by law enforcement resources. [00:54:12] Speaker 05: And that's what's supposed to happen because the situations that we're talking about, even the situations where it unfortunately could include an assault on a federal officer, that's a crime. [00:54:23] Speaker 05: That's a crime that was handled, they were arrested, and I understand that the U.S. [00:54:28] Speaker 05: Attorney's Office had 22, they're prosecuting 22 defendants. [00:54:32] Speaker 05: That's how this process is supposed to work. [00:54:35] Speaker 05: It's not that there is a protest, there is that and then you just send in the military. [00:54:41] Speaker 05: This is protected speech. [00:54:43] Speaker 05: And for the most part, it is calm and sedate. [00:54:46] Speaker 02: And it is so the drone so the drone on I guess this is the Wednesday, the suspect got violent and spit on agents, he was arrested and booked. [00:54:56] Speaker 05: That's general criminal activity that's handled appropriately by law enforcement. [00:55:01] Speaker 05: On the 4th, you have 20 protesters, and then there's only 15 at 8.30. [00:55:06] Speaker 05: On the 5th, FPS said it was a small group with low energy, no calls for service. [00:55:12] Speaker 05: On the 6th, there was 50 to 60 active protesters, lots of noise, they were energized, no arrests. [00:55:19] Speaker 05: September 7th, seven people, low energy. [00:55:22] Speaker 05: September 8th, 30 people. [00:55:24] Speaker 05: There were an altercation between protester and a counter protester not against the facility This it continues and I'm happy to go through the record. [00:55:33] Speaker 02: No, this is helpful We'll have to go through I mean, I don't think there's any question that it's gone down in September but yeah part of the problem there is it's it's gone down largely because of this influx of of other forces which is outside of the regular use of those [00:55:52] Speaker 02: uh of those fps officials so does the record show us how many of the extra people remain in portland the fps and how many have been sent back to i don't know if you heard the question i i think it was does it show i mean we know that up to 115 came do we know how many were there of of the extra fps maybe this is for something did you not hear yeah we're not hearing you very well it's kind of getting muffled for some reason [00:56:21] Speaker 04: Well, I'm right by the microphone. [00:56:27] Speaker 04: Does the record show the record is in front of us? [00:56:31] Speaker 04: How many of the FPS officers from outside of Portland who came in remain in Portland now and how many have been sent back to somewhere else? [00:56:45] Speaker 05: I haven't been able to find the exact numbers and [00:56:49] Speaker 05: much of the declarations don't have dates associated with them. [00:56:53] Speaker 05: So it is also very possible that those officers were sent in June and they have all returned. [00:56:59] Speaker 05: We have a note within the last week before the president's announcement that there was a surge of officers that came out and then there was no responsive protest activity. [00:57:10] Speaker 05: And so they went back to their respective offices. [00:57:13] Speaker 05: And then even after, I think that they may have plus up their numbers [00:57:17] Speaker 05: In anticipation of the president's announcement, but then even then there was some increased protest activity, but it went back. [00:57:25] Speaker 05: It went back down and. [00:57:28] Speaker 04: So the answer seems to be you don't know that we can't know from this record. [00:57:36] Speaker 04: And I believe counsel on the other side said, well, they haven't all gone home. [00:57:42] Speaker 04: But I understood him saying indirectly that some or many have gone somewhere else. [00:57:54] Speaker 05: Certainly, I mean, a lot of them have gone and what we also know from one of the declarations is that FPS, they respond to even nonviolent protests. [00:58:08] Speaker 05: This is their job. [00:58:10] Speaker 05: They respond to potential threats and they would use those numbers of officers to go [00:58:17] Speaker 05: To any kind of that exercise of speech, just in case something becomes violent. [00:58:22] Speaker 05: So this is squarely within their area of responsibility. [00:58:26] Speaker 05: And I know we continue to talk about FPS, but we haven't even talked about any of the other federal officers that are at the president's disposal. [00:58:33] Speaker 05: We have a ton of law enforcement agencies. [00:58:36] Speaker 05: under the president's control. [00:58:37] Speaker 05: There's referencing in their declarations to circumstances, again, that are outside of what happened in Oregon, or even if there was potentially a bomb threat. [00:58:47] Speaker 05: Well, we don't have anything that connects the bomb threat to these protesters. [00:58:50] Speaker 05: And if you do, you have significant law enforcement resources, ATF, FBI, that can respond to those potential threats. [00:58:58] Speaker 05: That's their job. [00:58:59] Speaker 05: That's what they do. [00:59:01] Speaker 02: The problem that I have with this argument that I'm just trying to struggle with is, [00:59:06] Speaker 02: You know, the president gets to direct his resources as he deems fit. [00:59:11] Speaker 02: 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. [00:59:19] Speaker 02: Now, I understand there's a statute here and we're going to have to review that. [00:59:24] Speaker 02: But this goes to the level of deference that I think the president is entitled to in these circumstances. [00:59:31] Speaker 02: And it's not all driven. [00:59:34] Speaker 02: Would you agree it's not all driven by what we see on the streets? [00:59:37] Speaker 02: It's also driven to some degree by what's going on behind the scenes. [00:59:43] Speaker 02: And you don't have a full view into that. [00:59:51] Speaker 05: I acknowledge that there is [00:59:54] Speaker 05: Certainly information behind the scenes, but we don't have that in this record and we don't have the defendants coming forward and putting forth anything that shows that the sporadic and minimal instances of violence, criminal activity that was appropriately handled by law enforcement at Portland is part of a greater whole. [01:00:18] Speaker 05: I think the district court found that, sorry, the defendants did not present any evidence that the sporadic violence was part of an organized attempt to overthrow the government. [01:00:30] Speaker 05: And that's, I think, what they're asking this court to potentially look at when you're talking about, for example, the shooting in Dallas, that that somehow increases the need. [01:00:39] Speaker 02: Well, that goes to your rebellion, or that goes to their rebellion designation, but that doesn't necessarily go, I mean, you don't have to have that under Prong 3, do you? [01:00:48] Speaker 02: by the enforcement of the laws? [01:00:51] Speaker 05: Well, I'm sorry, I don't understand that. [01:00:54] Speaker 02: Well, I mean, enforcement of the laws, you seem to say, well, there's no attempt to overthrow the government. [01:01:01] Speaker 02: And I mean, that's a fight within the context of whether there's a rebellion under subsection two. [01:01:08] Speaker 02: But I don't know why that is relevant to subsection three, which doesn't have anything to do with rebellion and is just the enforcement of the laws. [01:01:18] Speaker 05: Well, I agree that the Dallas shooting shouldn't be the basis to send troops into Oregon. [01:01:24] Speaker 05: And if we're relying on that third prong, then it certainly, it doesn't make that more or less probable. [01:01:35] Speaker 02: Can I just, and maybe my colleagues have final questions too, but, and I don't wanna focus on it, but I'm just perplexed. [01:01:43] Speaker 02: And I think Judge Beatty may have referenced this. [01:01:45] Speaker 02: So they reopened the, [01:01:49] Speaker 02: building. [01:01:49] Speaker 02: They board the windows for protection. [01:01:53] Speaker 02: And what does the city of Portland do? [01:01:55] Speaker 02: They issue a zoning violation. [01:01:57] Speaker 02: Are you defending issuing a zoning violation telling them to take off the boards that were put up to respond to protesters? [01:02:04] Speaker 02: Do you think that that was maybe ill-advised? [01:02:10] Speaker 05: Luckily, in this case, it's not something that the court needs to decide to determine whether or not the president's determination was within a colorable basis or within the range of honest judgment. [01:02:23] Speaker 05: But what we do know is that the circumstances at the time the president authorized the troops, whatever date that might be, they didn't raise to the level that was necessary under the statute. [01:02:35] Speaker 05: And we would ask that the stay be denied. [01:02:42] Speaker 02: Any other questions by my colleagues? [01:02:44] Speaker 05: No. [01:02:44] Speaker 02: Thank you. [01:02:45] Speaker 02: Thank you, Your Honor. [01:02:48] Speaker 02: We'll have three minutes of rebuttal. [01:02:52] Speaker 03: Thank you, Your Honors. [01:02:52] Speaker 03: I just have three quick points that I'd like to make. [01:02:55] Speaker 03: First, Judge Graper, going to your questions about the basis for the determination. [01:02:59] Speaker 03: We're not relying solely on the June 7th memo. [01:03:02] Speaker 03: My basic understanding is the June 7th memo is where the President sort of [01:03:06] Speaker 03: set out the framework and his understanding and interpretation that violence directed at ICE officers that seeks to impede their execution of the immigration laws is the sort of circumstance that can warrant activating the guard. [01:03:19] Speaker 03: And the President then subsequently made a determination that those circumstances were satisfied in Portland. [01:03:24] Speaker 03: If you look at page A52 of our appendix, [01:03:28] Speaker 03: You'll see that's where the DHS request is. [01:03:32] Speaker 03: DHS said that the facility in Portland and the ICE officers and the FBS officers have come under coordinated assault by violent groups intent on obstructing lawful enforcement actions these groups have sought to impede through violent protest, intimidation, and sabotage of federal operations. [01:03:51] Speaker 03: That was the information that was before the president when he made this determination in September. [01:03:57] Speaker 03: Second point I want to make is about the language of the statute talking about a present inability to execute the laws because of the violence that's ongoing and the risk of violence that's ongoing. [01:04:10] Speaker 03: There is a present impediment to the execution of the laws because the forces are tied down addressing that risk. [01:04:18] Speaker 03: We've discussed [01:04:18] Speaker 03: the FBS officers. [01:04:20] Speaker 03: It's not just the FBS officers. [01:04:23] Speaker 03: It's also ICE personnel. [01:04:24] Speaker 03: If you look at page 885. [01:04:27] Speaker 02: Do you have an answer to Judge Graber's question about how many FBS, there were 115 [01:04:35] Speaker 02: that were there in July, at least, and maybe longer, how many were there in September of the additional? [01:04:44] Speaker 03: I do not know the answer. [01:04:45] Speaker 03: I do not believe the record speaks to that. [01:04:46] Speaker 03: The citation that the plaintiffs provide in their brief to say that some of them have gone home is document 4626. [01:04:53] Speaker 03: You'll have to take a look at it for yourself. [01:04:55] Speaker 03: My best recollection, I don't have that document at my fingertips, my best recollection is it referenced about 10 people going home. [01:05:03] Speaker 03: But it's not just the FBS officers. [01:05:05] Speaker 03: If you look at paragraph 16 of the Cantu Declaration, it says the situation has resulted in FBS having to rely almost exclusively on ICE special response teams for assistance in preventing the violent protesters from attacking immigration officers and the ICE facility. [01:05:22] Speaker 03: And he explains that their primary mission is to be out in the field. [01:05:26] Speaker 03: handling high-risk immigration enforcement operations, but they're now having to be diverted to protect the facility becoming a drain on immigration enforcement as well. [01:05:36] Speaker 03: If you look at the Wamslee Declaration Paragraph 20, pages A77 to 78, it is to like effect. [01:05:42] Speaker 03: The final point that I want to make is, although we do think the judge was clearly wrong to circumscribe the inquiry to what was happening in September. [01:05:51] Speaker 03: I think the district court also did minimize the violence in September. [01:05:55] Speaker 03: I just want to highlight a couple of documents that are in the record. [01:05:58] Speaker 03: One is that our supplement supplemental appendix. [01:06:02] Speaker 03: A2 to A3. [01:06:03] Speaker 04: Council, are you now withdrawing what you said earlier, which is that you are not challenging as clearly erroneous any of the specific factual findings that the district court did make as distinct from ignoring certain things? [01:06:21] Speaker 03: I'm not challenging factual findings about what she said in terms of X event occurred on Y date. [01:06:27] Speaker 03: There may have been other events that occurred on other dates that she didn't address. [01:06:31] Speaker 03: That's not, I think, an issue for clearly erroneous review. [01:06:34] Speaker 03: But if you look at page SA2-3, this is on September 28th. [01:06:39] Speaker 03: This is one of the police reports. [01:06:42] Speaker 03: It starts out talking first about how a group of these agitators attacked two observers [01:06:47] Speaker 03: breaking the driver's window and leaving one of them bleeding heavily from the face. [01:06:52] Speaker 03: Then it says there were 50 to 60 protesters outside of ICE at the time. [01:06:55] Speaker 03: Most of them were blocking the facility's driveway and dissipation. [01:06:59] Speaker 04: I've read that document. [01:07:01] Speaker 04: I have a different question about it. [01:07:03] Speaker 04: Does that not post-date the final document on which you were relying as part of the call-up? [01:07:16] Speaker 04: And did that happen after September 28th is the is is the memo from the secretary. [01:07:26] Speaker 03: Right. [01:07:27] Speaker 03: And so that's that same day addressing. [01:07:29] Speaker 04: Okay. [01:07:29] Speaker 04: Is that the final document on which you rely? [01:07:32] Speaker 04: And I guess my question is, can you can you rely? [01:07:38] Speaker 04: on any event that post-dates the mobilization to justify the pre-existing mobilization. [01:07:49] Speaker 04: In other words, let's say there's nothing that happens at all. [01:07:53] Speaker 04: This is a hypothetical. [01:07:55] Speaker 04: Nothing happens, but troops are mobilized, and two days later, there are terrible things that happen. [01:08:05] Speaker 04: go back in time to justify or does there have to be something at the time of the mobilization? [01:08:12] Speaker 03: I certainly think this evidence is fair game because it shows- That's not an answer to my question. [01:08:18] Speaker 04: Can you rely on later evidence to justify a prior authorization? [01:08:24] Speaker 03: I think we can rely on later evidence to show that there was a colorable factual basis for the president's determination here because it demonstrates the very kind of risk that can materialize at any time with this sort of violent crap. [01:08:39] Speaker 03: But it's not just on the 28th, if you go back [01:08:41] Speaker 03: A week earlier on September 20th, this was that page a 104 of our appendix. [01:08:46] Speaker 03: It says another police report agents were busy tonight. [01:08:50] Speaker 03: There was a group of 50 at the facility again. [01:08:52] Speaker 03: Once a marked car drives through, they will flip off screen and throw objects at the car and in most cases run towards the car. [01:08:59] Speaker 03: as if they are going to charge the car. [01:09:01] Speaker 03: FPS Will Turner called me throughout the night with info about Black Walkers assaulting people. [01:09:06] Speaker 03: I received a video from FPS about a report about a journalist who was assaulted by a Black Walker with a large sword or stick. [01:09:12] Speaker 03: To be clear, even if these folks were still at ICE or nearby, we would not be able to address the call or make an arrest with the resources that we have. [01:09:20] Speaker 03: This is hardly the peaceful and sedate crowd that plaintiffs tried to make it out to be. [01:09:25] Speaker 03: These are violent people. [01:09:27] Speaker 03: And at any point we let down our guard, there is a serious risk of ongoing violence. [01:09:33] Speaker 03: And at some point, the president is entitled when his subordinates are telling him, we are overstretched. [01:09:38] Speaker 03: This is unsustainable. [01:09:40] Speaker 03: The officers aren't available to do their jobs. [01:09:42] Speaker 03: They're not available to surge to other places where we face violence. [01:09:45] Speaker 03: The president is entitled to say, enough. [01:09:48] Speaker 03: is enough and bring in the National Guard to reinforce the regular forces. [01:09:53] Speaker 03: We would ask the court to grant a state pending appeal as swiftly as possible. [01:09:58] Speaker 02: Thank you. [01:09:59] Speaker 02: Thank you to both counsel for your arguments in the case. [01:10:02] Speaker 02: The case will be taken under advisement and will respond as quickly as we're able. [01:10:10] Speaker 02: The case is now submitted. [01:10:15] Speaker 01: All persons having business with the Honorable the United States Court of Appeals for the Ninth Circuit will now depart for this court stands adjourned.