 Yes, the Food and Drug Administration (FDA) has abruptly withdrawn a proposed rule that would have mandated asbestos testing in talc-containing cosmetics. The rule, required by the 2022 Modernization of Cosmetics Regulation Act (MoCRA), aimed to establish standardized testing methods for detecting asbestos, a known carcinogen, in talc products. The FDA stated it needs to ensure any required test method effectively detects asbestos and noted comments suggested the rule would have "unintended consequences" for other products, including some drugs. Consumer safety advocates and environmental groups, including More Perfect Union and the Environmental Working Group (EWG), have strongly criticized the decision, calling it "reckless and dangerous". Critics argue the withdrawal removes essential consumer protections and forces reliance on the "honor system" for companies to test their products. The FDA intends to issue a new proposed rule that offers a "more comprehensive approach" to reducing asbestos exposure and identifying less costly alternatives. The withdrawal notice is scheduled to be officially published in the Federal Register on November 28, 2025 And before anyone shrugs—let’s be extremely clear about what asbestos is. It’s not controversial.
It’s not “under review.” It’s not something scientists are still debating. It’s a deadly substance linked to:
We have known this for decades. Corporations have known this for decades. Our government has known this for decades. So why would the FDA suddenly drop a rule requiring testing? We all know the answer - because mega corporations & their billionaire owners that make these products, do not want to pay for the testing. And the politicians who depend on corporate donors don’t want to upset the companies. So instead of strengthening protections, we’re removing them, and we’re expected to believe that’s normal. This is how deregulation actually works. It’s not always a press conference or an executive order. It’s a rule disappearing quietly. It’s a guideline being “reconsidered.” It’s an agency suddenly deciding safety is optional. Then, a few years later—after the damage is already done—someone publishes a study showing increased cancer rates in young women who used a certain powder or foundation. And everyone acts shocked. “How could this happen?” So what do we do? We support organizations and journalists exposing corporate influence inside federal agencies. We stop pretending consumer safety is a luxury. And we stop letting politicians use “regulation” as a dirty word while corporations walk away with record profits and zero accountability. Because the job of government is not to protect corporate margins. It’s to protect human beings. And right now, that could not be further from the truth.
0 Comments
A group of 17 transgender Air Force and Space Force members recently sued the U.S. government after their previously approved early retirement benefits were revoked as part of the Trump administration's transgender military ban  The lawsuit, filed in the U.S. Court of Federal Claims in November 2025, is ongoing, and no outcome has been reached yet. Key Details of the Lawsuit
It is just the latest in a series of legal challenges to the Trump administration’s policies that have sought to push transgender troops out of the military since the early days of his second term. The U.S. Supreme Court in May, however, allowed the ban on trans troops to be enforced while legal challenges proceed.
According to GLAD Law, one of the advocacy groups that helped bring the lawsuit, service members affected by the policy will now face a loss of up to $2 million owed for their service over the course of their lifetimes in addition to the loss of health insurance benefits. Michael Haley, a staff attorney with the group, said the revocation of the early retirement benefits was part of “the general cruelty in attacking transgender people.” He noted that many of the plaintiffs had received orders allowing their retirements and that some had even begun the process of getting out of the military. Logan Ireland, a master sergeant in the Air Force with 15 years of service that includes a deployment to Afghanistan, joined the lawsuit after having his early retirement denied. He told The Associated Press that “the military taught me to lead and fight, not retreat." "Stripping away my retirement sends the message that those values only apply on the battlefield, not when a service member needs them most,” he added. “These are folks who are going to move on with their lives, have received the OK to do so, and then have that taken away from them once again," Haley said. The Pentagon did not immediately respond to comment but has a longstanding policy of not commenting on ongoing litigation. President Donald Trump and Defense Secretary Pete Hegseth have targeted diversity, equity and inclusion efforts in what they say is an effort to make the military more lethal. Pentagon officials say 4,240 troops have been diagnosed with gender dysphoria, which the military is using as an identifier of being transgender. The Air Force has been unique in implementing policies that have gone beyond just separating troops from military service. In addition to revoking retirement benefits, the service moved in August to deny transgender members of the Air Force the chance to argue before a board of their peers for the right to continue serving. The Pentagon rolled out a similar, military-wide version of that policy less than two weeks ago. Supreme Court Sees Amicus Brief Surge From Former Federal Judges in Trump Cases  A growing number of former federal judges have filed multiple amicus briefs in U.S. Supreme Court cases involving Donald Trump, particularly in cases concerning the scope of presidential power and the independence of federal agencies. This surge in participation is seen as a response to perceived threats to the rule of law and the judiciary's independence.
Key Cases and Amicus Filings Former judges have weighed in on several significant cases:
Significance of the Surge The involvement of former federal judges as amici curiae ("friends of the court") is a relatively new phenomenon in its current frequency. Signatories often include judges appointed by both Republican and Democratic presidents, adding a bipartisan dimension to their arguments. Retired U.S. District Judge Shira Scheindlin noted that this unprecedented level of participation is driven by a desire to speak on behalf of the judiciary amid attacks from the Trump administration on sitting judges. While the persuasive weight of these briefs is a subject of debate, some Supreme Court justices have occasionally referenced arguments from former judges in past opinions. The lawsuit originated from an effort by hard-line activists to enforce ideological criteria and block candidates deemed insufficiently loyal to President Trump.  A Georgia judge has issued a scathing ruling that permanently struck down an attempt by the Catoosa County Republican Party to impose "mysterious" ideological loyalty tests on candidates seeking to run as Republicans for local office. Ruling Details
Background The lawsuit originated from an effort by hard-line activists to enforce ideological criteria and block candidates deemed insufficiently loyal to President Trump. The Catoosa GOP tried to block four county commission candidates, including three incumbents. This decision is seen as a significant setback for far-right factions seeking to control Republican candidacies in Georgia and reinforces that state law governs ballot access. The justices agreed to hear a challenge to Mississippi’s law, a case that could upend similar measures in dozens of states before the 2026 election.  The Supreme Court has agreed to hear a major challenge to mail-in ballot laws, specifically a case from Mississippi that will determine if states can count ballots that arrive after Election Day, even if postmarked by that date.
Key Details of the Case
“Rather than attempting to invoke a religious exemption for herself, Davis instead exercised the full authority of the Rowan County Clerk’s office to enact an official policy of denying marriage licenses to same-sex couples, one every office employee had to follow,”  The Supreme Court on Monday declined to hear the appeal from Kim Davis, the former Kentucky court clerk who sought to overturn the landmark 2015 decision in Obergefell v. Hodges that legalized same-sex marriage nationwide. The refusal to hear the case means the ruling in Obergefell remains the law of the land and a lower-court order for Davis to pay a same-sex couple a substantial sum in damages stands. The justices did not provide any comment or explanation for the denial, and no dissents from the decision were publicly noted. Key Details
I remember when this first happened and wrote about it. Mike Huckabee went to Kentucky to support Kim Davis. Also there to support her was Founder of the Oathkeepers Stewart Rhodes. Stewart had just advocated in Ferguson, MO and Chattanooga, TN revealing himself as a racist and a supporter of radical government attempts to instill religion into government. A stance that is nothing new to Huckabee. It was a horrible display of a bias that continues to seep into our government in my experience view.
“I felt like I had the right to do what I did,” Thompson told Tribal Business News. “It is a medicine, and it's part of our treaty to be able to harvest and utilize it as a medicine.”  The case that could reshape how Public Law 280 applies to cannabis rights is State of Minnesota v. Todd Jeremy Thompson. Todd Thompson, a member of the White Earth Band of Ojibwe, was charged in Mahnomen County with first-degree possession of cannabis with intent to sell after state agents and tribal police raided his smoke shop, Asema Tobacco and Pipe, in August 2023. The legal arguments in the case center on:
The outcome of the case, which had oral arguments in the Minnesota Court of Appeals in November 2025, could set a significant precedent for how state cannabis laws interact with tribal sovereignty and jurisdiction under Public Law 280 in states that have legalized marijuana In 1953, Congress enacted Public Law 83-280 (67 Stat. 588) to grant certain states criminal jurisdiction over American Indians on reservations and to allow civil litigation that had come under tribal or federal court jurisdiction to be handled by state courts. However, the law did not grant states regulatory power over tribes or lands held in trust by the United States; federally guaranteed tribal hunting, trapping, and fishing rights; basic tribal governmental functions such as enrollment and domestic relations; nor the power to impose state taxes. These states also may not regulate matters such as environmental control, land use, gambling, and licenses on federal Indian reservations.
The states required by Public Law 280 to assume civil and criminal jurisdiction over federal Indian lands were Alaska (except the Metlakatla Indian Community on the Annette Island Reserve, which maintains criminal jurisdiction), California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. In addition, the federal government gave up all special criminal jurisdiction in these states over Indian offenders and victims. The states that elected to assume full or partial jurisdiction were Arizona (1967), Florida (1961), Idaho (1963, subject to tribal consent), Iowa (1967), Montana (1963), Nevada (1955), North Dakota (1963, subject to tribal consent), South Dakota (1957-1961), Utah (1971), and Washington (1957-1963). Subsequent acts of Congress, court decisions, and state actions to retrocede jurisdiction back to the Federal Government have muted some of the effects of the 1953 law, and strengthened the tribes’ jurisdiction over civil and criminal matters on their reservations. The Threats Continue: Trump Administration Demands States “undo” work to send full food stamps11/9/2025 In late-night guidance, the Agriculture Department also threatened financial penalties against states.  Yes, the Trump administration has demanded that states "immediately undo" any actions to provide full Supplemental Nutrition Assistance Program (SNAP), or food stamp, benefits for November 2025, a directive issued amid a government shutdown and a related legal battle.
The U.S. Department of Agriculture (USDA) sent a memo to state SNAP directors after the Supreme Court temporarily paused lower court orders that had mandated the full payment of benefits. The administration now considers any full payments made under those previous court orders to be "unauthorized". The memo from Patrick Penn, the deputy undersecretary of Agriculture, warned states that non-compliance could result in penalties, including the cancellation of federal administrative costs or holding states liable for "overissuances". Several states, including Wisconsin, Massachusetts, and California, had already begun issuing full benefits to millions of residents following the initial lower court rulings. Governors of some of these states, such as Wisconsin's Tony Evers and Maryland's Wes Moore, have publicly pushed back against the federal directive, with Evers' office simply responding "No" in a statement. The situation has created chaos and uncertainty for the 42 million Americans who rely on the program for groceries, with some states warning of "catastrophic operational disruptions". The legal battle is ongoing, as the case is expected to be further reviewed by the U.S. Court of Appeals for the First Circuit. The Trail of Tears: The Tragic Story of the Forced Displacement of the Five Civilized Tribes11/9/2025 Over 125,000 Native Voices Were Silenced  In the 1830s, Congress passed the Indian Removal Act, which forcibly removed thousands of American Indians from their homelands in the southeastern United States. They were relocated to an area of land then known as Indian Territory, now the state of Oklahoma. This tragic event is referred to as the Trail of Tears. Over 10,000 Native Americans died during removal or soon upon arrival in Indian Territory.
Since its inception, the United States government struggled with a problem. Greedy citizens and politicians in the southeast wanted the valuable lands occupied by the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), Seminole, and other tribal nations. Following the Louisiana Purchase, an enormous acquisition of territory west of the Mississippi in 1803, President Jefferson presumed that the tribes could be persuaded to give up their homes in exchange for land further west. Following Jefferson’s lead, President Andrew Jackson pushed for the passage of the Indian Removal Act of 1830. The act provided funds for the United States government to negotiate removal treaties with tribes. The federal government coerced tribal leaders to sign these treaties. Factions arose within the tribes, as many were opposed to giving up their homelands. Cherokee Principal Chief John Ross even traveled to Washington to negotiate alternatives to removal and pleaded for the government to redress the injustices of these treaties. The United States government did not deviate from its policy. Although President Jackson negotiated the removal treaties, President Martin Van Buren enforced them. The impact of the removal was first felt by the Choctaw. Starting in 1831, they were forced off their lands in Mississippi. The years 1836-38 saw the Creeks, Chickasaws, Cherokees, and Seminoles forced from their homes and removed to Indian Territory. Some United States citizens disagreed with the actions of the government, including Congressman David Crockett of Tennessee. Christian missionaries also denounced the injustice of the policy. Noted missionary Elizur Butler, who accompanied the Cherokee and served as their doctor, estimated that over 4,000 people, a fifth of the Cherokee population, died along the trail. “Will not the people in whose power it is to redress Indian wrongs awake to their duty? Will they not think of the multitudes…swept into Eternity by the cupidity of the ‘white man’ who is in the enjoyment of wealth and freedom on the original soil of these oppressed Indians?” - Lucy Ames Butler, wife of Elizur Butler, to her friend Drusilla Burnap in 1839. WE WILL NOT LET THEM BE FORGOTTEN. 125,000 Native Americans from the Cherokee, Creek, Seminole, Chickasaw, and Choctaw tribes were forcibly removed from their homelands. Many never made it to the places they were forced to go. They fell on the Trail of Tears, where their voices were silenced forever. But today, we won't let them be forgotten. Imagine being forced to leave your home, leaving behind everything you know and love. You’re compelled to walk hundreds of miles, through harsh weather, without enough food or water. The road ahead doesn’t lead to a better life, but to a journey filled with suffering and death. On that cruel journey, the elderly, women, and children faced unimaginable hardships. They watched their loved ones fall, unable to help. Every step on the Trail of Tears brought them closer to death, as disease, starvation, and exhaustion slowly claimed their lives. The Trail of Tears was not just a journey of migration. It was a brutal act aimed at erasing an entire culture, silencing voices, stories, and dreams of thousands of innocent people. It was a betrayal, not only to those who perished but to the future of these tribes. The New York County Lawyers Association's Rule of Law Task Force published the report ahead of Zohran Mamdani's decisive win for New York City mayor. In October, President Donald Trump threatened to deploy troops to New York City if Mamdani won Tuesday's election.  In recent months, the Administration has sought to deploy federalized National Guard or regular federal troops in five of our country’s major cities—Los Angeles, Washington, D.C., Memphis, Portland, and Chicago. While the precise conditions and relevant legal issues differ for each city, the attempted deployments share several common themes.
For each city the President used extreme rhetoric to justify the use of federal troops. Portland, for example, was said to be “war ravaged,” Memphis “deeply troubled,” and Washington, D.C. a “crime emergency.” In each case, the President’s characterization appears to have had little basis in the underlying facts. For four of the affected cities, state and local authorities brought suit to block the military incursion. And in each of those suits, the Executive contended that the President’s decision either is beyond any judicial review or is entitled to so much judicial deference as to be effectively unreviewable. Federal district courts have entered temporary restraining orders (“TROs”) in three of these lawsuits, holding in each case that the President’s determinations are subject to judicial review and that proper deference to the President does not prevent courts from carefully considering whether the factual and legal grounds for domestic deployment of the National Guard or regular U.S. military (collectively “Federal Troops”) have been established. The appellate courts’ treatment of these TROs has been mixed, but none has held that the President may escape effective judicial review. 1. The Rule of Law Task Force is gravely concerned about such use of Federal Troops Three conclusions are now clear: First, it is likely that the President will continue to seek to deploy Federal Troops in major U.S. cities. Second, the use of Federal Troops to carry out domestic law enforcement is an enormous threat to our constitutional rights, liberties, and freedoms. Third, the U.S. Supreme Court’s interpretation of the Constitution and relevant statutory provisions will ultimately set the legal parameters for when Federal troops may be deployed for domestic policing against the wishes of state and local authorities. The Rule of Law Task Force of the New York County Lawyers Association believes it is critical that the Federal troops, including federalized National Guard members under the President’s command, not be allowed to exercise domestic policing powers except in those extremely rare circumstances authorized by applicable federal statutes and our Constitution. We urge every court that considers these questions to recognize that due deference to the Executive never deprives the courts of their right—and duty—under the Constitution to uphold the rule of law and preserve our constitutionally protected civil rights, liberties, and freedoms. 2. There is a strong tradition in the United States of America of resistance to military intrusion into civilian affairs From the very founding of our nation, there has been “a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history.” Laird v. Tatum, 408 U.S. 1, 15 (1972). One of the grievances set forth in our Declaration of Independence was that the King of England “has affected to render the Military independent of and superior to the Civil power.” Because of that first-hand experience with an occupying army, the framers of the Constitution gave Congress, not the President, the power to “provide for calling forth the Militia.” Moreover, the Bill of Rights, particularly the Third, Fourth, and Fifth Amendments, places limits on the military’s domestic operations that not even Congress may override. Recognizing that the domestic use of the military poses a particular threat to the rights, liberties, and freedoms of individuals, the courts quickly adopted the “unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.” Raymond v. Thomas, 91 U.S. 712, 716 (1875). 3. The Posse Comitatus Act and 10 U.S.C. § 12406 Codified this American tradition of resistance In 1878, Congress codified these principles in the Posse Comitatus Act, which barred the President, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” from “willfully us[ing] any part of the [federal military forces] as a posse comitatus or otherwise to execute the laws. . ..” Significantly, the Act makes clear that, no matter the circumstances, the President has no implicit authority or inherent power to use the federal military, whether members of the regular forces or the federalized Guard, for domestic policing. In the 19th century, what we know of today as the National Guard was a set of state-controlled militias that existed primarily to repel foreign invasions. In the early 20th century, Congress enacted 10 U.S.C. § 12406 permitting the “calling into federal service” of state National Guard members under narrowly defined circumstances. This statute does not implicitly give the President the authority to deploy such troops for law enforcement purposes; the Posse Comitatus Act only permits express authorizations. 4. Section 12406 permits federalization of the National Guard in only three narrow circumstances The President invoked 10 U.S.C. Section 12406 when seeking to justify his federalization of the National Guard in the Chicago, Portland and Los Angeles cases. However, the express language of Sec. 12406 provides for federalization of the National Guard in only three narrow circumstances: If (1) “the United States . . . is invaded or is in danger of invasion by a foreign nation”; (2) “there is a rebellion or danger of a rebellion against the authority of the Government of the United States”; or (3) “the President is unable with the regular forces to execute the laws of the United States.” 5. Oregon and Illinois Courts have prohibited the Deployment of the federalized National Guard in those States On October 4, 2025, Judge Karin J. Immergut of the U.S. District Court for the District of Oregon granted local authorities a TRO enjoining the federalization and deployment of Oregon’s National Guard in Portland (the “Oregon Opinion”). The next day, the court issued a second TRO enjoining the deployment of any National Guard members in Oregon. On October 8, the U.S. Court of Appeals for the Ninth Circuit granted an emergency administrative stay of the first TRO, but only with respect to the federalization of the already-federalized Oregon National Guard, thus leaving the TRO against deployment in place. On October 20, by a 2-1 vote, a Ninth Circuit panel stayed the first TRO in its entirety pending appeal (the “Ninth Circuit Panel Opinion”). On October 28, the Ninth Circuit vacated this panel’s October 20 order and ordered that the case be reheard en banc. On October 30, the Ninth Circuit clarified that the panel’s October 8 administrative stay remains in effect. On November 2, Judge Immergut, after a three-day evidentiary trial, issued a preliminary injunction enjoining the deployment of any National Guard members until November 7, by which time the court will issue its final opinion. On October 9, 2025, Judge April M. Perry of the U.S. District Court for the Northern District of Illinois granted local authorities a TRO enjoining the President and other defendants from ordering the federalization and deployment of the National Guard within Illinois, and on October 10, she issued her written opinion (the “Illinois Opinion”). On October 11, the U.S. Court of Appeals for the Seventh Circuit granted an administrative stay with respect to the federalization of the National Guard, but left in place the TRO blocking the deployment of those troops. On October 16, the Seventh Circuit issued a unanimous opinion extending its partial stay of the Illinois TRO pending appeal (the “Seventh Circuit Opinion”). On October 17, the Executive applied to the U.S. Supreme Court for an administrative stay and a stay pending appeal of the portion of the Illinois TRO that remains in effect. On October 20, the state and local authorities responded to the application. On October 23, pursuant to an agreement between the parties, the District Court extended the TRO prohibiting the deployment of the National Guard until a final decision is reached on the merits. In each of these cases as well as in the Los Angeles case, the Executive has asserted that “regular forces” includes civilian employees of DHS and other federal agencies. In her TRO decision, Judge Perry found that the term “regular forces” in Sec. 12406(3) “was understood at the time of enactment to mean the soldiers and officers regularly enlisted with the Army and Navy,” and did not include such civilian employees. She held that, because “[d]efendants have made no attempt to rely on the regular forces before resorting to federalization of the National Guard … the statutory predicate contained within Section 12406(3) has not been met on that basis alone.” Illinois Opinion at 35 (using the electronic court filing (ECF) page numbers). In an amicus brief filed with the Supreme Court on October 21, Georgetown Law School Professor Martin S. Lederman persuasively argued that Judge Perry was correct, providing the Court with extensive evidence that Congress intended “regular forces” in Sec 12406 to refer “to the standing, professional military forces, who were commonly known as ‘Regulars,’” and that the term “regular forces” has been consistently used by Congress, the Supreme Court and the military itself to refer specifically and exclusively to such standing military professionals. Id. at 12. On October 29, the Supreme Court directed the parties to file supplemental letter briefs addressing “[w]hether the term ‘regular forces’ refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation of 10 U. S. C. §12406(3).” These briefs are to be filed by November 10 with reply briefs due by November 17. 6. The Rule of Law Task Force agrees that the courts may review a President’s decision to federalize the National Guard The Oregon Opinion (ECF at 17) and the Ninth Circuit Panel Opinion (ECF at 19-20) relied on Newsom v. Trump, 141 F.4th 1032, 1047 (9th Cir. 2025) for the courts’ authority to review a President’s decision to federalize and deploy the National Guard as well as the standard of review. The Illinois Opinion (ECF at 31) and the Seventh Circuit Opinion (ECF at 13) relied on the principles of Loper Bright Enters. v. Raimondo, 603 U.S. 369, 386 (2024) to support the court’s authority to conduct judicial review. The Rule of Law Task Force agrees that 10 U.S.C. § 12406, the Constitution and well-established principles of statutory construction require the courts to review a President’s decision to federalize the National Guard over the opposition of state and local authorities. Moreover, the Oregon and Illinois cases exemplify why access to judicial review is crucial to preserve separation of powers and protect our fundamental liberties and civil rights. State and local officials in Oregon and Illinois have asserted that federal military intervention is likely to interfere with the exercise of fundamental protected rights within the state, such as the First Amendment right to protest government policies and actions. Valid concerns that a federal military presence is likely to threaten the right to a free press and intimidate citizens from going to the polls to vote have also been raised. In addition, intervention over the objections of local officials would intrude on the states’ sovereign police power and would interfere with the constitutional balance of power between the federal and state governments in violation of the Tenth Amendment. United States v. Morrison, 529 U.S. 598, 618 (2000). As Illinois argues in its opposition to the Executive’s Supreme Court stay application (at 37): “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz, 521 U.S. [898] at 935 [1997]. But applicants attempt to do just that, including by offering the State an impermissibly coercive “choice”: either deploy National Guard troops under state control to carry out the federal government’s civil immigration priorities, or accept occupation by federal troops. 7. The courts must closely scrutinize the evidence to determine if the Executive’s stated rationale for the federalization and deployment of the National Guard meets statutory requirements and is grounded in actual fact The Oregon District Court followed the Ninth Circuit’s instruction in Newsom that, in reviewing a President’s federalization of the National Guard under Section 12406, a court must give “a great level of deference to the President’s determination that a predicate condition exists.” Newsom at 1048. However, as the Ninth Circuit held, the court may, within this standard, “review the President’s determination to ensure that it reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’” Id. at 1051 (quoting Sterling v. Constantin, 287 U.S. 378, 399 (1932)). At the same time, again quoting Sterling at 399–400, Newsom held that the President’s “exercise of his authority to maintain peace” must be “conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance.” Id. (Emphasis in original). The Illinois Opinion observed that the government is “‘not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.’… [but] [s]till, Defendants must support their position by pointing the Court to some of the facts upon which it bases its conclusions and offering explanations which paint a substantially reasonable picture justifying the Executive’s position.” Illinois Opinion (ECF at 32) quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 33–35 (2010). (in which the Supreme Court declined to rely on the Executive’s belief that support for that terrorist organization’s non-violent functions constituted material support to a terrorist organization, requiring instead that the Executive to set forth the basis for its belief). In both the Oregon and Illinois cases, the Executive asserted that “dangers” associated with protests near ICE facilities required federal military intervention. But, applying these standards, both district courts found that these assertions were pretextual and without any reasonable basis in fact. The Rule of Law Task Force believes the courts must give serious consideration to state and local officials’ claims of unconstitutional overreach by the Executive as was done by the Oregon and Illinois district courts. When such claims are raised, the courts must, as guardians of the Constitution, closely scrutinize the evidence to determine whether the Executive’s stated rationale for the federalization and deployment of the National Guard meets statutory requirements and is grounded in the facts. Conducting judicial review in this area does not demonstrate insufficient deference to the Executive, but rather is a necessary and proper recognition that our Constitution guarantees individual rights, liberties, and freedoms. 8. The Oregon District Court found the Executive’s factual claims to be unsupported by the record and pretextual Judge Immergut found that the plaintiff Oregon officials provided “substantial evidence that the protests at the Portland ICE facility were not significantly violent or disruptive in the days — or even weeks — leading up to the president’s directive on Sept. 27, 2025.” Oregon Opinion (ECF at19). After observing that “‘a great level of . . . deference [to the President] is not equivalent to ignoring the facts on the ground,” Id., at 22, the judge, a Trump appointee, held: (1) the President’s own statements show that his decision to federalize the Guard was not “conceived in good faith” or “in the face of [an] emergency and directly related to the quelling of the disorder or the prevention of its continuance.” Id. at 22 (2) the President lacked a “colorable basis” to invoke 10 U.S.C. § 12406(2) because the protests in Portland, which were small and had not involved any acts of violence for a considerable period prior to the President’s federalization of the Guard, were not “a rebellion” as that term is used in the statute and did not pose a “danger of a rebellion.” Id., at 25, and (3) the President lacked a “colorable basis” to invoke Section 12406(3) because the credible evidence, presented largely by the local authorities, did not show that federal agents were unable to execute federal law. Id. at 23. 9. The Illinois District Court also found the Executive’s factual claims to be unsupported by the record and pretextual Like the Oregon District Court, the Illinois District Court rejected the Executive’s claim that the Chicago protests constituted a “rebellion” under Sec. 12406(2). Illinois Opinion (ECF at 32-34). As the Seventh Circuit observed, “A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest.” Seventh Circuit Opinion (ECF at14). In addition to holding that “regular forces” in Sec. 12406(3) refers to the standing military, the Illinois District Court found that the “disruptions” caused by protesters – which were “of limited duration and swiftly controlled by authorities” – did not render the Executive “unable” to execute the laws of the United States as required by the statute. Illinois Opinion (ECF at 43). In its decision, the Illinois District Court noted “a troubling trend of Defendants’ declarants equating protests with riots and a lack of appreciation for the wide spectrum that exists between citizens who are observing, questioning and criticizing their government, and those who are obstructing, assaulting, or doing violence.” Id., at10-11. The court observed, id., at 43, that the disruptions were in fact “of limited duration and swiftly controlled by authorities.” Thus, they did not support the Executive’s claim that “the President is unable with the regular forces to execute the laws of the United States.” The court also observed, id., at 49-50, “[t]here has been overwhelming evidence presented that the provocative nature of ICE’s enforcement activity has caused a significant increase in protest activity” and that because “National Guard members ‘are trained to effectively destroy enemies in combat scenarios, rather than to de-escalate conflicts . . . allowing them to deploy [as a federalized National Guard] . . . will only add fuel to the fire that Defendants themselves started.’” These comments are particularly disturbing in light of the October 9, 2025 TRO entered by another Illinois federal district court based on evidence that DHS agents had improperly used force against protestors, praying clergy and journalists. In addition to enjoining such intimidation and use of force, the TRO required Defendants’ agents to wear visible identification when not conducting undercover operations. On October 17, this same court entered a revised TRO adding a requirement that federal agents who are conducting immigration enforcement operations activate body cameras. 10. Appellate courts may only overturn a District Court’s factual findings on a TRO if those findings were clearly erroneous, which was not the case for the Illinois or Oregon Opinions In both the Oregon and Illinois cases, the district courts were presented with substantial evidentiary records on which they based detailed findings that supported their respective conclusions that the Executive’s assertions about the need for federal military intervention were pretextual and without any reasonable basis in fact. To overturn those factual findings, an appellate court would have to conclude under Rules 52(a)(2) and 52(a)(6), Fed. R. Civ. P., that the district court’s factual findings were clearly erroneous. We question whether, on the records in either of these cases, an appellate court could properly reach that conclusion. The dissent, unlike the majority, in the Ninth Circuit Panel Opinion explicitly applied this principle, and would not have stayed the Oregon court TRO. 11. The Rule of Law Task Force agrees that the balance of harms weighs in favor of continuing the stay of the deployment of federalized National Guard in both Illinois and Oregon pending appeal. The Rule of Law Task Force agrees with the Seventh Circuit Opinion analysis (ECF at 16-17) that on the record in these cases, the balance of harms weighs in favor of continuing the stay of the deployment of federalized National Guard pending appeal: “[T]he federal government has been able to protect federal property and personnel without the National Guard’s help. By contrast, the administration’s likely violation of Illinois’s Tenth Amendment rights by deploying Guard troops in the state over the state’s objection ‘constitutes proof of an irreparable harm.’ Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978). And the deployment of National Guard members from Texas—an incursion on Illinois’s sovereignty—makes the constitutional injury especially significant.” This same analysis applies equally to the situation in Oregon. 12. The courts should not be criticized for fulfilling their obligation to protect our fundamental Constitutional rights Those who criticize the courts for examining the evidence in these cases, instead of rubber stamping the Executive’s assertions, ignore the duty of our courts to protect us from unwarranted infringement of the fundamental rights guaranteed to us by our Constitution, including the right to protest government policies and actions, and the right to a free press. We urge everyone committed to the preservation of those rights and the Rule of Law to join us in calling on the courts to scrutinize carefully the factual and legal basis for any claim that the President has the authority to federalize and deploy the National Guard within the United States. This statement has been issued by the Rule of Law Task Force and approved by NYCLA’s President. It has not been reviewed by NYCLA’s full Board of Directors and does not necessarily represent its views. |
Categories |
RSS Feed
© Walk 4 Change. All rights reserved.