Rising This Week: 'Constitutional law, not martial law'

Kilmar Abrego Garcia has a habeas corpus hearing on Monday. James Comey's arraignment is on Thursday, and Trump's troop gambits remain ongoing.

Protesters reject military antics in front of Trump’s Chicago hotel on Sept. 2. (Photo by Kamil Krzaczynski / AFP via Getty)

Stay clear-eyed about Trump’s ambitions and your rights.

During the Constitutional Convention of 1787, James Madison warned about how military forces used to defend against threats from abroad can turn into “instruments of tyranny” when used at home.

“A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”

The ruling issued by Donald Trump-appointed U.S. District Judge Karin Immergut, which quotes Madison’s observations at length, is extraordinary for many reasons.

Yes, Immergut’s opinion rebukes the man who appointed her to the federal bench during his first term, but federal judges are not supposed to owe any personal loyalty to the president who appointed them. Trump’s appointees have blocked many of his illegal and unconstitutional designs, including his scheme to subvert the 2020 election, attacks on freedom of the press, and deportation of children in defiance of anti-human trafficking laws.

Trumpism thrives on delegitimizing courts and other checks on his power by defining every adverse ruling as politically motivated. In MAGA mythology, every Trump-appointed judge who rules against Trump is a never-Trumper, and overemphasizing how Judge Immergut came to the federal bench plays into that messaging. Immergut is just the latest of a long line of Trump-appointed federal judges reining in the abuses of power of the man who appointed her when the occasion called for it.

What makes Immergut’s ruling powerful is its clarity in identifying the threat of Trump’s war games on U.S. soil, invoking the “tyranny” Madison warned about the year the U.S. Constitution was signed.

Immergut writes that Trump’s actions erode “the longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs.”

“This historical tradition boils down to a simple proposition: this is a nation of Constitutional law, not martial law,” her 31-page opinion and order states. “[Trump and Pete Hegseth] have made a range of arguments that, if accepted, risk blurring the line between civil and military federal power—to the detriment of this nation.”

The judge rejected Trump’s description of a “war-ravaged” Portland as “simply untethered to the facts.” Portland’s protests have not seen violence for months, she noted in her decision.

For that factual observation, Trump’s advisor Stephen Miller declared Immergut part of a legal “insurrection” standing in the way of putting down an “organized terrorist attack on the federal government.” Trump’s Justice Department filed a notice of appeal of a ruling that Immergut carefully crafted to pass the Ninth Circuit’s test.

For now, Trump appears too weak to act on Miller’s histrionics. Trump’s troops in Los Angeles have done little more than stand in front of government buildings for months, and there is a court order preventing them from engaging in civilian law enforcement. The Oregon National Guard’s deployment has been blocked for the next two weeks.

Shortly before the publication of this newsletter, The New York Times reported that Gov. Gavin Newsom said that Trump sent 300 members of California’s federalized National Guard to Oregon. The judge’s order only blocked the deployment of the Oregon National Guard, but the California National Guard remain under a court order not to violate the Posse Comitatus Act.

According to the Times, Newsom denounced the move as a “breathtaking abuse of power” and said he would sue.

In Washington, D.C., an investigation by Reuters found that the law enforcement activity barely changed since Trump’s troop deployment.

Judge Immergut invoked Madison’s warning about the domestic use of the troops as “instruments of tyranny” in order to keep that tool out of Trump’s grasp, even as Trump jockeys to exploit any perceived loophole.

So, what now?

Last week, an All Rise News subscriber expressed disappointment about the newsletter pointing out the constraints on Trump’s power. This person believed that I was “normalizing” Trump by covering the legal pushback as anything but a fig leaf for the “full-blown authoritarianism” in the United States.

I understand his pessimism.

After all, this newsletter has covered how the Supreme Court effectively overturned a nearly 90-year-old precedent without explanation to let Trump purge the Federal Trade Commission, and Chief Justice John Roberts asked whether the justices should abolish the concept of an independent agency altogether. Dozens of thoughtfully written opinions by district court judges have been paused by the Supreme Court along partisan lines without any explanation whatsoever on the emergency docket.

With limited exceptions, the Roberts Court has allowed Trump to purge the government, unleash racial profiling-based immigration raids, and send people to countries they are not from and where they might be tortured and killed.

From its inception, All Rise News has never flinched from calling out Trump’s authoritarianism, but this newsletter rejects fatalism and despair about that threat. Trump wants the public to believe his pretensions of unchecked power. He hopes that an intimidated and demoralized people will not oppose him through protest, civic engagement, and yes, the legal system.

The reality is far different: Trump promised his supporters retribution against his political enemies, only to clumsily subvert a U.S. Attorney’s office in public view in order to gin up a case against his former FBI director James Comey. A grand jury rejected what would have been the top charge against Comey before that case even began.

Since March, Trump has tried and failed to disappear Kilmar Abrego Garcia, who is only in the United States right now because of the government’s failures at every level of the federal judiciary toward that objective. Abrego scored a major victory recently in proving his vindictive prosecution. On Monday, Abrego’s attorneys likely will ask a judge to release their client from immigration custody.

Trump and Miller are attacking the U.S. judiciary because they correctly recognize it as a check on their power.

Even in its fractured and degraded form, the legal system is what stopped the military from the business of civilian law enforcement in California, and the legal pushback has been equally potent in Oregon. Far from filling the jails with his enemies, Trump has found that D.C. grand juries have rejected indictments in unprecedented numbers. Student protesters targeted for deportation for their pro-Palestinian advocacy successfully sued for their freedom, and Ronald Reagan-appointed U.S. District Judge William Young recently found that the Trump administration violated their First Amendment rights as a group.

That does not mean readers should have a complacent faith in the legal system as an abstract institution. It’s a flawed check on Trump’s power, and Judge Young wrote in his ruling that Trump appears to be “winning.”

Still, the public cannot afford to ignore what’s happening inside the courts, especially as judges — appointed by presidents across the political spectrum — keep warning about the threat of “tyranny,” by name. Those warnings are meant to provoke public action.

Every week, All Rise News lists major court hearings, protests, and other forms of civic engagement in service of that editorial mission. Subscribers can access them below.