Spiegel Stuff: The Gavel: Legal battle lines drawn in National Guard fight

By Ella Lee and Zach Schonfeld | Wednesday, October 8

Legal battle lines drawn in National Guard fight

President Trump's aggressive use of the National Guard in American cities is opening new legal battlegrounds over his push to deploy the military on U.S. soil.

The fight started in Los Angeles before shifting to Washington, D.C., where courts are still weighing Trump's National Guard deployments.

But in recent days, the president has called hundreds of troops in Illinois and Oregon into federal service and ordered them sent to the states' largest cities, Chicago and Portland, over local leaders' opposition. The president also sought to deploy California National Guard members to Portland and Texas guardsmen to both cities.

A federal judge in Oregon has already twice blocked Trump from deploying troops to Portland for now, and Illinois has asked a federal judge to do the same in Chicago.

It's pouring fuel on the already-smoldering legal fight over Trump's quest to expand presidential power, and at the same time, stands to redefine the military's role.

Usually, it's a governor's job to control their state's National Guard, a reserve military force which is typically called into action during natural disasters or civil unrest.

However, the president may also call up the National Guard into federal service under a provision of Title 10 that allows the president to deploy the troops to fend off an invasion, suppress a rebellion or pave the way for the president to execute the law.

It comes with a catch: Federal troops are subject to the Posse Comitatus Act, an 1878 law generally barring their participation in civilian law enforcement. When troops are under a governor's command, the centuries-old law does not apply.

Trump has relied on Title 10 to mobilize National Guard members in Oregon, Illinois and California, where a judge ruled last month troops ran afoul of the law when Trump sent them to Los Angeles. The Trump administration has appealed that decision.

He also relied on the statute in his attempt to send Texas and California troops to Chicago and Portland.

It's a different tact than was used in Washington, D.C. Trump commands the city's National Guard but Republican-led states offered up additional troops in Title 32 status, meaning they are under local authority but federally funded.

Critically, those troops are not subject to Posse Comitatus, though District officials claim in their own lawsuit that the Trump administration has federalized them in all but name.

Democratic leaders have still likened Trump's moves to an "invasion." The states that have sued claim the president is stepping on their sovereignty and the troops engaging in civilian law enforcement.

"The folks in the neighborhoods do not want armed troops marching in their streets when it comes to public safety," Illinois Gov. J.B. Pritzker (D) said at a press conference Monday, suggesting Chicagoans would rather see jobs, after school programs and civilian law enforcement "when they need them."

"They do not want Donald Trump to occupy their communities," he continued.

California Gov. Gavin Newsom (D), who joined Oregon's lawsuit when Trump mobilized hundreds of his state's troops after a federal judge blocked the administration from federalizing Oregon's own troops, urged that "states cannot invade one another."

"This is so simple — so fundamental to America — I cannot believe I have to type those words," he wrote on X, claiming the country is "on the brink of martial law."

Texas Gov. Greg Abbott (R) has taken the opposite view.

"I fully authorized the President to call up 400 members of the Texas National Guard to ensure safety for federal officials," Abbott wrote on X Sunday. "You can either fully enforce protection for federal employees or get out of the way and let Texas Guard do it."

On Monday, Pritzker urged the Texas governor to "stay the hell out of Illinois's business."

The Trump administration has argued in court that Immigration and Customs Enforcement (ICE) facilities are under attack and that judges must give a "great level of deference" to the president's determination to federalize the National Guard.

But Trump still holds a trump card.

He could invoke the Insurrection Act, an exception to Posse Comitatus that allows the president to send active-duty military into states that can't quell a rebellion on their own or are defying federal law.

Trump said Monday he would invoke the rarely used power "if it was necessary."

"So far, it hasn't been necessary," Trump said. "But we have an Insurrection Act for a reason."

Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).

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IN FOCUS

SCOTUS '25; Comey in court; Kavanaugh suspect sentence outrage

Back to SCOTUS

Opening Day? First day of school?

However you prefer to think of it, welcome to the start of the Supreme Court's next annual term, known to Supreme Court insiders as OT 25, or October Term 25.

The docket is still filling up, but it's already set to be a big one from the future of the Voting Rights Act to transgender athletes to Trump's tariffs.

The first high-profile case headed to arguments Tuesday, when the justices took the bench to review Colorado's ban on conversion therapy.

In the weeks leading up to each Supreme Court term, lawyers and nerds like us flock to panel discussions filled with predictions for the new term. Here's a sampling of what we heard:

At Georgetown University:

Obama-era solicitor general Don Verrilli predicted that "the shape of the electoral process and the way it's regulated, it's going look potentially different in June than it does now."

Roman Martinez, head of Latham & Watkins's Supreme Court practice, said an interesting theme this term – and more generally with the Trump administration – is going to be "to see how this Supreme Court applies some of the doctrines that have been more skeptical of executive branch overreach in prior years."

At the Federalist Society:

Wiley Rein partner Megan Brown with an understatement: "John Sauer is a very busy man this term."

Jo-Ann Sagar, partner at Hogan Lovells, said it's "super interesting to hear about the court doing more criminal conlaw. I feel like that's been really missing from the docket for a while."

Judicial Crisis Network president Carrie Severino has her eyes fixed on Justice Neil Gorsuch in cases involving LGBTQ rights: "Is he going to make some commentary in these cases? Is he going to continue to at least be silent and simply vote?"

At the American Constitution Society:

Pamela Karlan, co-director of Stanford Law School's Supreme Court Litigation Clinic, said the court is "gunning for getting rid of Humphrey's Executor," the 90-year precedent that has justified removal protections at independent agencies. "I think of the current court as Humphrey's executioner instead of the executor. And that will gut independent agencies."

Rutgers Law School professor Carlos Ball proposed that if the court is "going to say no to the administration on an important issue of policy, it is likely to be on the tariff question."

Alexis Hoag-Fordjour, co-director of Brooklyn Law School's Center for Criminal Justice, predicted more dissents by Justice Ketanji Brown Jackson. "She's really distinguished herself as an outspoken, critical and sharp dissenter."

Other standouts:

James Burnham, former DOGE general counsel and managing partner of King Street Legal, suggests Chief Justice John Roberts is "definitely not going to say...that that he will not say Title IX and Equal Protection requires that the boys be on the girls' basketball team."

University of Michigan law professor Leah Litman predicts: "With the Trump cases that are already on the court's docket, it seems like the court is going to f*** around and find out with going further and further down the rabbit hole that is the unitary executive theory."

Samuel Bray, University of Chicago law professor, says two conflicts color the background heading into the new term: "On one axis, there's the Supreme Court and the president...the other axis is between the Supreme Court and the lower federal courts."

Kate Shaw, University of Pennsylvania law professor: "In the age of the rocket docket, formerly known as the shadow docket, term previews are going to be totally incomplete."

As we turn the page on OT 24, some end-of-term statistics:

The court docketed roughly 3,971 certiorari petitions to take up cases. Less than 2 percent have been granted, though a relatively small lot is still pending.

Much of the action was on the court's emergency docket. The full court resolved 139 applications this term, granting at least some emergency relief 29 times.

Trump administration: 20-2-2 (the court only granted partial relief in two cases)

Biden administration: 1-0

Everyone else: 6-108

In the "everyone else" category, congratulations to the Horseracing Safety and Integrity Authority, Virginia Elections Commissioner Susan Beals, the American Civil Liberties Union, Maine state Rep. Laurel Libby (R), the Turtle Mountain Band of Chippewa Indians and the New Jersey Transit Corporation for being rare victors.

A final note: the court resets its case numbering at the start of the summer recess. But nowadays, a lot of action takes place during the summer, so we prefer to wipe the scoreboard in October when the new term starts. As a result, our numbers will differ from statistics recorded by some other places.

With that, the new term awaits.

Comey due in court

Ex-FBI Director James Comey is set to be arraigned today in an Alexandria, Va. courthouse, his first court appearance in a criminal case that's off to an odd start.

Comey was hit with two charges after Trump ramped up pressure on his Justice Department to prosecute his adversaries. A White House aide installed by the president sought the indictment, after his previous appointment determined there was not enough evidence to seek an indictment.

The aide Trump tapped, Lindsey Halligan, had no prior experience as a prosecutor, and, until yesterday, remained the only prosecutor on the case. The prosecutors who joined Halligan's team on Tuesday are Nathaniel T. Lemons and Gabriel Diaz.

At least one prosecutor, Comey's son-in-law, has left the Alexandria-based U.S. attorney's office since the charges were filed.

When U.S. District Judge Michael Nachmanoff takes the bench, he'll be taking the reins of the unusual and high-profile case.

The hearing, where Comey is expected to enter a plea, was initially set for Thursday. The judge moved it up to Wednesday over security restraints due to "previously scheduled matters" expected to draw crowds.

The court's calendar shows a naturalization ceremony is scheduled Thursday for the same time as Comey's sentencing was initially planned, and Nachmanoff is also set to sentence a Maryland man who pleaded guilty to assaulting an airline gate agent at Dulles International Airport in Virginia the same day, a case that has drawn media attention.

Now, Comey's arraignment is the only hearing at 10 a.m. ET that is being held in-person at the courthouse.

Comey is expected to show up for his day in court. The federal court signed off on a summons, which means he does not need to be arrested prior to his arraignment.

However, several outlets reported that the FBI wants — or at one point wanted — to "perp walk" the bureau's former director in front of news media after he was charged. An agent was reportedly disciplined for declining to participate.

The hearing will likely be pretty short. At an arraignment, a defendant is informed of the charges against them, advised of their constitutional rights and may enter a plea. The judge may also take care of some housekeeping matters, like scheduling future court dates.

Comey is accused of making false statements to Congress and obstructing of a congressional proceeding, charges stemming from testimony he gave the Senate in 2020 as it dug into investigations probing any ties Trump's 2016 presidential campaign had with Russia.

After the charges came down, he professed his innocence and called for a trial.

"My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system," Comey said in a video posted to Instagram.

Trump, whose feud with Comey dates back nearly a decade, has called his former FBI director a "dirty cop" and hoped of officials facing charges that there "would be others."

Kavanaugh attempted assassin's sentence sparks outrage

Conservatives are expressing outrage at a judge for lowering the sentence of the California resident who pled guilty to attempting to kill Justice Brett Kavanaugh in part because they are transgender.

The Trump administration will appeal U.S. District Judge Deborah Boardman's decision to sentence Sophie Roske to eight years and one month in prison, nearly what Roske requested and far below the government's ask for at least 30 years.

Taking center stage is how Boardman explicitly pointed to how Roske will be treated in prison as a transgender woman under Trump's crackdown on what he calls "gender ideology."

Trump signed a Day 1 executive order mandating the Bureau of Prisons (BOP) house transgender women in male-only facilities and restrict access to gender-affirming care. It is currently the subject of litigation in other courts.

At Friday's hearing, Roske and her public defenders raised concerns about how a lengthy sentence under those conditions would impact her mental health. Boardman sympathized with those concerns, at one point telling the government's lawyer, "let's not hide" Trump's orders.

"I take into consideration...the fact that she as a transgender woman will be sent to a male-only BOP facility," Boardman, a Biden appointee, said as she handed down the sentence.

Administration officials and conservatives have attacked the sentence as being too lenient for a person who flew cross-country and arrived on Kavanaugh's street in the middle of the night with a pistol, zip ties and other weapons, intending to murder the conservative justice before he could overturn Roe v. Wade.

"The attempted assassination of Supreme Court Justice Brett Kavanaugh was a disgusting attack against our entire judicial system by a profoundly disturbed individual," Attorney General Pam Bondi reacted in a statement. "The Department of Justice will be appealing the woefully insufficient sentence imposed by the district court, which does not reflect the horrific facts of this case."

"A betrayal of America," Rep. Dave Taylor (R-Ohio) wrote on X.

Mike Davis, a Trump ally and head of the conservative Article III Project, called Boardman a "national disgrace" on X and added, "Today's Democrats want conservatives killed."

Severino, the Judicial Crisis Network President and a prominent conservative lawyer, described the sentence as "absurd" in a post on the platform.

"So, claiming you are transgender gets you less time in prison? That's a great incentive program," she wrote. "What an outrageously dangerous signal to send as political violence is on the rise. This sentence is a disgrace."

It's not the judge's first time drawing the ire of Trump's allies. She has regularly ruled against the administration in cases assigned to her involving Trump's second-term agenda.

Boardman issued one of the nationwide injunctions blocking Trump's birthright citizenship restrictions that the Supreme Court clawed back in a 6-3 decision along ideological lines.

The judge also issued a ruling in June ordering the administration to restore certain AmeriCorps funding and two earlier in the year blocking Department of Government Efficiency (DOGE) personnel from accessing sensitive data at three agencies.

Last month, Boardman was assigned a new lawsuit that challenges the Defense Department's effort to exclude gender-transition treatments from Tricare, its health insurance program for members of the military. She has not yet made any major rulings in the case.

Roske's case has garnered national attention amid a rising trend of political violence.

Last month, a Florida jury convicted a man of attempting to assassinate Trump at his golf course, the second such attempt he faced last year.

Prosecutions also remain ongoing for the suspects accused of killing conservative activist Charlie Kirk and setting fire to Pennsylvania Gov. Josh Shapiro's (D) official residence. The latter suspect's next court hearing is set for Tuesday.

Threats also remain top-of-mind at the high court and the judiciary. On Sunday, police arrested a 41-year-old man for possessing a Molotov cocktail outside St. Matthew's Cathedral hours before the Red Mass, an annual event attended by Supreme Court justices and other dignitaries.

None of the justices ended up attending Sunday, Patricia McCabe, the Supreme Court's public information officer, told The Gavel.

SIDEBAR

5 top docket updates

Maxwell appeal rejected: The Supreme Court declined to consider throwing out the 2021 sex-trafficking conviction of Ghislaine Maxwell, the longtime associate of convicted sex offender Jeffrey Epstein.
Trump wins on TPS again: The justices let the Trump administration end temporary legal protections that the Biden administration extended for hundreds of thousands of Venezuelans, the second time the justices have ruled in Trump's favor in the case.
H1-B visa lawsuit: The Trump administration was hit with a lawsuit over its bid to impose a $100,000 fee on new H-1B visas for highly skilled international employees.
Trump Georgia case faces deadline: A Georgia judge set a two-week deadline for a state agency to assign a new prosecutor to the 2020 election interference case against President Trump and his allies, or it will be dismissed.
Supreme Court takes up Cook case: The Supreme Court agreed to hear oral arguments over President Trump's effort to fire Federal Reserve board of governors member Lisa Cook in January. In the meantime, she can stay in her role.

In other news

Judge's home burns: South Carolina authorities are investigating a fire that engulfed a home belonging to Circuit Judge Diane Goodstein, and her husband, a former state senator, several outlets reported. It's raised concerns of another incident of political violence, though South Carolina Gov. Henry McMaster said Monday that law enforcement have found "no evidence" so far the fire was intentionally set.
Sanchez charges upgraded: Marion County, Ind., prosecutors announced Monday they were upgrading charges against former NFL quarterback and current Fox analyst Mark Sanchez over a stabbing incident in Indianapolis over the weekend. Sanchez, who was arrested as he was recovering in the hospital, now faces a felony charge of battery resulting in a serious violent injury.
(Do) We Have the Meats: The fast-food chain Arby's lost its motion to fully dismiss a false advertising lawsuit alleging the company made it seem as if its sandwiches had "at least 100% more meat" than they actually do.

THE ORDER LIST

Cases the Supreme Court is taking up — or passing on — this term.

In: Cuba lawsuits, Hawaii gun law challenge

The Supreme Court took up five new cases at its "long conference," the term's opening conference that gets its nickname because the justices work through the massive pileup of petitions from their summer recess.

We covered three of those five in our long conference previews, so check out recent editions of The Gavel (which are also linked below) for a more in-depth look:

In Wolford v. Lopez, the court will hear a Second Amendment challenge to Hawaii's concealed carry ban on private property without the property owner's express permission. It stands to impact similar laws in several other states.

In Exxon Mobil Corporation v. Corporación Cimex and Havana Docks Corporation v. Royal Caribbean Cruises, the court will decide two distinct questions related to the Helms-Burton Act. Together, the cases could make it easier for U.S. companies to seek compensation for property seized after the Cuban Revolution. The Trump administration urged the court to take up the disputes after the justices asked for input.

Out: Ghislaine Maxwell's appeal

The Supreme Court let stand the conviction of Ghislaine Maxwell, the longtime accomplice of disgraced financier Jeffrey Epstein.

In Maxwell v. United States, she had petitioned the court to review her sex-trafficking conviction over claims she was immune under a 2007 non-prosecution agreement Epstein signed with federal prosecutors.

The petition garnered increased attention as pressure mounted on the Trump administration, which opposed Maxwell's petition, in recent months to release more files in Epstein's case. Deputy Attorney General Todd Blanche met with Maxwell and her counsel, David Oscar Markus, for an interview this summer.

The high court turned it away without comment along with hundreds of other petitions Monday.

That list includes a handful of petitions we've highlighted in recent editions, like: Laura Loomer's appeal in her failed racketeering lawsuit against Meta, another lawsuit brought against the company by the daughter of the pastor killed in the 2015 Charleston church mass shooting, and Missouri's bid to revive its law declaring many federal gun restrictions invalid in the state.

Maybe: Nuclear waste, Spain and trademark infringement

The court asked the Trump administration's input on whether it should take up three pending petitions. It's known as a call for the views of the solicitor general, often abbreviated as CVSG.

The justices will return to the petitions after the administration files its views in writing, which normally takes a few months.

These are ones to watch, as the court tends to go with the sitting administration's recommendation. Look no further than the Cuba cases the court took up Friday.

We covered the first, Cotter Corp. v. Mazzocchio, in the long conference previews. Two companies are appealing in a damages lawsuit filed by two sisters over radioactive waste exposure from the Manhattan Project that allegedly caused them to develop cancer.

The case concerns whether federal or state rules should dictate the liability standard in lawsuits over nuclear incidents.

We also previewed Spain v. Blasket Investments. Spain's government is petitioning the court to rule that a group of energy companies cannot haul the country into a U.S. court to confirm arbitration awards they won after Spain cut electricity subsidies.

The justices also asked for the Trump administration's views on a third petition we haven't covered yet.

In RiseandShine Corp v. PepsiCo Inc., nitro-brewed coffee maker Rise Brewing is seeking to revive its trademark lawsuit against Pepsi over its Mountain Dew Rise energy drink line.

Trademark infringement lawsuits require plaintiffs to show the competing product is likely to cause confusion. The analysis includes several factors, including the distinctiveness of the plaintiff's trademark.

An appeals court found the distinctiveness factor favored Pepsi and ruled against Rise Brewing. The judges considered it a question of law they could resolve without a trial, but the coffee maker's Supreme Court petition contends it is a question of fact that may need to go before a jury.

PETITION PILE

Petitions to take up cases that the justices are keeping a close eye on.

The justices held over 18 petitions from the long conference and will consider them again this week.

We highlighted four of those in previous editions.

In Hutson v. United States, Louisiana is hoping to wipe an order requiring it to construct an 89-bed facility for detainees with mental health needs. In Klein v. Martin, Maryland wants to reinstate a man's attempted murder conviction. In NBA v. Salazar, the league is trying to end a data privacy lawsuit. And in Doe v. Grindr, an autistic teenage boy is taking aim at the gay dating platform's immunity under Section 230.

We won't go through all the remaining 18, but a few we want to highlight:

COVID vaccines: In Does 1-2 v. Hochul, health care workers are attempting to revive their civil rights lawsuit against New York for not providing religious exemptions from the state's now-repealed COVID-19 vaccine mandate. The court has turned away similar petitions in the past.
Seventh Amendment: In Thomas v. Humboldt County, Calif., the court is asked to incorporate the Seventh Amendment civil jury trial right against the states. It is one of the few provisions of the Bill of Rights that has not yet been applied to the state level.
Parental rights: In Lee v. Poudre School District R-1, the America First Policy Institute is bringing a major parental rights case to the justices. The case is brought by two Colorado families who say their sixth-grade daughters were exposed to "gender ideology" behind closed doors.

Finally, we also wanted to highlight two petitions being listed for the first time this week:
Alex Jones: In Jones v. Lafferty, Conspiracy theorist Alex Jones is appealing his $1.4 billion liberal judgment he owes for calling the Sandy Hook Elementary School shooting a hoax. The court appears poised to deny this petition.
Guns and drugs: The Trump administration has filed a handful of petitions asking the court to uphold the constitutionality of the federal crime for possessing a gun while an unlawful drug user. Some appeals courts have invalidated it. It's the latest request from the administration for the high court to opine more on the Second Amendment.

ON THE DOCKET

Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:

Today

Ex-FBI Director James Comey is set to be arraigned on two criminal counts by a federal judge in Alexandria, Va., where he is expected to enter a plea.
The Supreme Court will hold oral arguments over whether a member of Congress and two of Trump's 2020 presidential electors have standing to sue over Illinois's practice of counting mail-in ballots cast on but received after Election Day in Bost v. Illinois State Board of Elections.
The justices will also weigh if the U.S. Postal Service can be held liable for failing to deliver mail to a Black landlord who claims she was racially discriminated against by her carriers in Postal Service v. Konan.

Thursday

Jose Uribe, the New Jersey businessman who pleaded guilty in the far-reaching corruption case against ex-Sen. Bob Menendez (D-N.J.), his wife and two other businessmen, ahead of trial, is set to be sentenced by a federal judge in New York.
Disgraced movie mogul Harvey Weinstein is set to be sentenced in Manhattan for his 2006 sexual assault of Miriam Haley, a production assistant on the reality show "Project Runway," which Weinstein produced.
A federal judge in Illinois is set to hold a temporary restraining order hearing the state and city of Chicago's lawsuit against the Trump administration over National Guard deployment.
A federal judge in Washington state is set to hold a hearing on the Trump administration's motion to dismiss 16 Democratic state attorneys general's lawsuit over the Education Department's discontinuation of mental health funding grant programs.
A federal judge in California is set to hold a preliminary injunction hearing in a challenge to the Department of Agriculture's demand states turn over data about millions of Americans who've applied for Supplemental Nutrition Assistance Program (SNAP).

Friday

A woman who pleaded guilty to three counts of assaulting a government official for spitting on former interim U.S. Attorney Ed Martin while he still held the position is set to be sentenced by a federal judge in Washington, D.C.
A federal judge in Maryland is set to hold an evidentiary hearing in mistakenly deported man Kilmar Abrego Garcia's challenge to the Trump administration's renewed effort to deport him.

Monday

Federal courts are closed for Columbus Day, also known as Indigenous Peoples' Day.

Tuesday

The Supreme Court will announce orders.
The Supreme Court is set to hear oral arguments over a question of post-conviction relief for a man who pleaded guilty to attempted robbery and discharging a gun during a crime of violence. The case is Bowe v. United States.
The justices will also hear oral arguments over whether the Mandatory Victim Restitution Act's stricter restitution requirements apply retroactively in Ellingburg v. United States.
The U.S. Court of Appeals for the 9th Circuit has scheduled oral arguments in the Trump administration's appeal of a judge's order blocking his deployment of National Guard troops to Portland, Ore.
The U.S. Court of Appeals for the District of Columbia is set to hear oral arguments in pro-immigration groups' appeal of a judge's ruling siding with the Trump administration in a challenge to the president's executive order directing a review of all grants supporting undocumented migrants and pausing those grants in the meantime.
The D.C. federal appeals court is also set to hear oral arguments in five DOJ Office of Justice Program grant recipients' bid to revive their lawsuit over the Justice Department's decision to terminate the grants.
Former Supreme Court Justice Anthony Kennedy's new book, "Life, Law & Liberty: A Memoir," is scheduled for release.
A hearing is scheduled in the criminal case of Cody Balmer, the man accused of setting fire to Pennsylvania Gov. Josh Shapiro's (D) official residence.
A woman who tussled with an FBI agent is set to stand trial in Washington, D.C. on a misdemeanor assault charge after three federal grand juries declined to indict her on a felony assault count amid Trump's crackdown on crime.