The Cases That Could Unleash Trump’s War on Blue Cities

California asked the Ninth Circuit to review the panel’s decision in an en banc hearing, meaning that the entire appellate court would review it. (Since the Ninth Circuit is so large, it only uses a subset of eleven judges for en banc hearings.) The court declined to do so, keeping the lower court’s restraining order on ice for now. That drew a strenuous dissent from Judge Marsha Berzon and some of her colleagues, who castigated the panel’s decision.

Among Berzon’s critiques was the panel’s approach to Martin. “Martin cannot, and does not, change the meaning of a statute not in effect when Martin was decided and whose predecessor, the Militia Act of 1795, was distinct from and not considered in Martin,” she explained. “Read carefully, in fact, Martin did not address at all courts’ authority to review the President’s exercise of his delegated power to call forth the militia.” (Emphasis hers.) Armed with that deferential standard, the three-judge panel proceeded to green-light Trump’s deployment of the National Guard because of the facts on the ground.

This is a fraught exercise, to say the least, because Trump’s own arguments for the deployments often appear to be either exaggerated or even false. The president’s choice of targets also appears to hinge less on whether there is an actual emergency and more on whether he likes the city and its residents. Los Angeles and Chicago are disfavored and suffered accordingly; San Francisco, on the other hand, escaped Trump’s targeting for now because Silicon Valley billionaires called him this week and asked him not to intervene.