Trump Admin Legal Team's Defense Of Portland Goon Squads Mirrors Prior Pretextual Arguments

by Michael C. Dorf

Running for the Republican nomination for President in December 2015, candidate Donald Trump called for a "total and complete shutdown of Muslims entering the United States." Two and a half years later, a 5-4 US Supreme Court upheld travel restrictions on persons entering the US chiefly from Muslim-majority countries, even though, as Justice Sotomayor noted in dissent, there was overwhelming evidence that the version of the Travel Ban before the Court in 2018 was the lineal descendant of, and would not have existed but for, Trump's extensive and blatant anti-Muslim animus. Nonetheless, Chief Justice Roberts, writing for the majority, deemed that background irrelevant in light of the sanitizing efforts of Trump's minions: "the issue before us is not whether to denounce [Trump's] statements," the Chief Justice said in the course of accepting a clearly pretextual national security justification for the supposedly sanitized Travel Ban.

The next year, the Chief's patience seemed to have run out. Once again the Court was confronted with Justice Department arguments that sought to defend an indefensible Trump program via a pretext. This time the question was whether the Census Bureau could include a citizenship question that was clearly designed to generate an undercount of Latinx households and thus boost the relative representation and distribution of funds to non-Latinx, Republican-leaning, jurisdictions. Again writing for the Court but this time joined by the liberal wing, Chief Justice Roberts rejected the administration's preposterous claim that it sought to add the citizenship question in order to generate data that would help it enforce the Voting Rights Act.

Were I now focusing on the practical import of the census case ruling, I would direct readers to the executive order Trump signed on Tuesday purporting to exclude "illegal aliens" (a term widely deemed offensive that the order therefore uses nine times) from the ranks of "persons" who count for apportionment. However, I'll set that issue aside for current purposes. My interest today is in the question of when the Court will and when it won't accept clearly pretextual justifications for Trump's policies.

That question could ultimately decide the fate of Trump's invasion of Portland and potentially other cities. Here too we have a very substantial divergence between the clearly unlawful policy Trump is pursuing and its depiction and defense by his spokespeople. On one hand, Trump expressly states that his rationale for sending federal personnel into cities "run by liberal Democrats" is to quell violence generally, for which the federal government lacks authority in the absence of state or local authorization. On the other hand, Acting Homeland Security chief Chad Wolf says that the vaguely identified federal shock troops on the ground in Portland are there simply to protect a federal courthouse, a line that the federal government lawyer David Morrell repeated in a videoconference hearing before Federal District Judge Michael Mosman yesterday on a lawsuit brought by Oregon Attorney General Ellen Rosenblum on behalf of the state--asserting its own sovereign interest and its parens patriae interest in protecting its citizens.

Will Judge Mosman, the Ninth Circuit, and/or ultimately the US Supreme Court accept the Trump administration's pretextual arguments? I hope not, but several factors give one pause.

By contrast with the census case--in which the argument that the administration wanted to enforce the Voting Rights Act was preposterous--here there is some truth to the offered justification. Some number of people engaged in the nightly activity in Portland have damaged the federal courthouse, which federal personnel are entitled to protect, with or without the permission or cooperation of state or local authorities. We can assume that Portland Mayor Ted Wheeler is correct that the tactics the federal personnel are using are exacerbating the situation, but that's a matter of policy rather than power.

In addition, Judge Mosman seems unlikely to rule for Oregon. He's a George W. Bush appointee, but that's not the core of the problem. Judge Robart, who blocked the first version of the Travel Ban, is also a GWB appointee. Further, one might expect a conservative judge to be sympathetic to a state attorney general arguing that the federal government is overreaching and thus violating principles of federalism. Here, however, in addition to the partisan valence, the conservative attachment to narrow views of standing cut against Oregon.

The leading modern case recognizing state standing on behalf of its citizens is 2007's Massachusetts v. EPA, in which the conservative justices with the exception of Justice Kennedy dissented. In light of Justice Kennedy's retirement and replacement with Justice Kavanaugh, we can expect the SCOTUS to construe parens patriae standing narrowly even if it does not overrule Massachusetts, and in the meantime, we can expect conservative lower court judges to do the same. And indeed, during yesterday's argument, Judge Mosman sounded skeptical of standing for the state to raise claims of individuals subject to allegedly unlawful arrest and excessive force.

Another ground may partly explain that skepticism. Any federal judge based in Portland would be reluctant to rule in favor of Oregon. Although the videoconference nature of the argument meant that there was no need for anyone to be physically present in the courthouse, after the pandemic recedes, judges will return. They will want and need protection. Both the activities in Portland and the very recent lethal attack on the family of a federal judge in New Jersey would quite understandably lead any federal judge to give the benefit of the doubt to people who are charged with protecting the workplace of that very judge.

To be sure, Judge Mosman will not have the last word on this lawsuit, but some of the factors in play for him--including his skepticism of broad state standing and especially his likely concerns about his own physical safety--will be repeated at the Ninth Circuit and SCOTUS level. Perhaps more importantly, Judge Mosman can set the agenda by making findings of fact that could then only be overturned if found to be clearly erroneous. And here the facts are in dispute.

The state claims that the federal authorities are doing much more than protecting federal facilities or pursuing people who appear to have attacked federal facilities or personnel. Given that the President continues to proudly proclaim that his administration is indeed trying to act in place of state and local police, the state's claim is extremely credible. Nonetheless, Judge Mosman could say that the statements do not reflect the policy on the ground, just as the SCOTUS eventually said in the Travel Ban case. To be sure, Judge Mosman could only make ultimate findings of fact after a trial, but he could deny Oregon the preliminary relief it seeks by finding that there has been an insufficient showing of likely success on the merits. Even if that ruling were eventually overturned on appeal or after a full trial, the administration would have months to deploy its shock troops in Portland and potentially other cities.

Accordingly, although I think there is merit to AG Rosenblum's lawsuit, I'm not especially optimistic that it will succeed. What then?

There is a possibility of a political resolution. Perhaps Trump will back down under pressure from Congress and the People, but given Republican control of the Senate, that can hardly be assumed. Public hearings in the House can expose what the administration is doing, but this administration is not capable of being shamed into doing the right thing. Writing in The NY Times on Tuesday, columnist Jamelle Bouie proposed that the House condition funding of Homeland Security on the cessation of the activities in Portland and like activities elsewhere. That's a good idea, but the power of the purse is difficult to exercise, especially in a game of chicken with a Republican Senate and President willing to throw away the steering wheel.

Thus, at least prior to noon on January 20, 2021, Trump may well be able to continue his Portland-Chicago-YourCityNext policy. On this, as on so many other matters these days, I very much hope that my gloomy prediction is proven wrong, but hope is not the same thing as analysis.