law professor

President Trump has often locked horns with the 9th Circuit Court of Appeals, with the once left-leaning court putting a persistent drag on his first-term agenda.

And now, even after remaking the bench with his own appointees, the president is still tangling with the West Coast’s federal appellate court — a situation poised to boil over as the circuit juggles multiple challenges to his use of the National Guard to police American streets.

“I appointed the judge and he goes like that — I wasn’t served well,” Trump told reporters Sunday, lashing out at U.S. District Judge Karin Immergut of Portland after she temporarily blocked the deployment federalized troops.

“To have a judge like that, that judge ought to be ashamed of himself,” Trump said, referring to Immergut, who is a woman.

The president has long railed against judges who rule against him, calling them “monsters,” “deranged,” and “radical” at various points in the past.

Trump has also occasionally sniped at conservative jurists, including U.S. Supreme Court Chief Justice John Roberts, whom he called “disgraceful” after the court rejected his bid to overturn the 2020 election.

But this weekend’s spat marked a shift in his willingness to go after his own appointees — a turn experts say could become much sharper as his picks to the appellate bench test his ambition to put boots on the ground in major cities across the U.S.

“The fact that a pretty conservative judge ruled the way she did is an indication that some conservative judges would rule similarly,” said Ilya Somin, a law professor at George Mason University and a constitutional scholar at the Cato Institute.

The 9th Circuit handed the administration an early victory in the troop fight this spring, finding that courts must give “a great level of deference” to the president to decide whether facts on the ground warrant military intervention.

That ruling is set to be reviewed by a larger appellate panel, and could ultimately be reversed. The circuit is also now set to review a September decision barring federalized troops in California from aiding in civilian law enforcement, as well as Immergut’s temporary restraining order blocking the deployment over the weekend.

In the meantime, the 9th Circuit’s June decision has served as a guidepost for states seeking to limit what Oregon called a “nationwide campaign to assimilate the military into civilian law enforcement.”

“That decision is binding, and it does require a substantial degree of deference on the factual issues,” Somin said. “[But] when what the president does is totally divorced from reality, that limit is breached.”

Immergut appeared to agree, saying in her ruling that circumstances in Portland this fall were significantly different than those in L.A. in the spring. While some earlier protests did turn violent, she wrote, recent pickets outside Portland’s ICE headquarters have featured lawn chairs and low energy.

“Violence elsewhere cannot support troop deployments here, and concern about hypothetical future conduct does not demonstrate a present inability to execute the laws using nonmilitary federal law enforcement,” the judge wrote, addressing the 9th Circuit decision.

“The President is certainly entitled ‘a great level of deference,’” Immergut continued. “But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground. … The President’s determination was simply untethered to the facts.”

But exactly where the appellate court may draw the line on presidential fact-finding is tricky, experts said.

“How much deference is owed to the president? That’s something we’re all talking about,” said John C. Dehn, a professor at Loyola University Chicago School of Law.

Whether courts can review the president’s judgment at all is a matter that splits even some of the president’s most conservative judicial picks from his current justice department attorneys.

So far, Trump has relied on an esoteric subsection of the U.S. Code for the authority to send soldiers on immigration raids and to control crowds of protesters.

Dehn and others have characterized that reading of the code as semantic and divorced from its legal context.

“They’re looking at the words in a vacuum and arguing the broadest possible meaning they could can think of,” Dehn said. “The administration is not engaged in good faith statutory interpretation — they’re engaged in linguistic manipulation of these statues.”

Immegur agreed, quoting Supreme Court precedent saying “[i]nterpretation of a word or phrase depends upon reading the whole statutory text.”

For some conservative legal scholars, Trump appointees’ willingness to push back on repeated deployments could signal a limit — or a dangerous new escalation in the administration’s attacks on jurists who defy them.

“It’s obvious the administration is trying to do this on a bigger scale,” Somin said. “Ideally we would not rely on litigation alone to deal with it.”

WASHINGTON  — Public health advocates won a big case in the Supreme Court on the last day of this year’s term, but the victory came with an asterisk.

The decision ended one threat to the no-cost preventive services — from cancer and diabetes screenings to statin drugs and vaccines — used by more than 150 million Americans who have health insurance.

But it did so by empowering the nation’s foremost vaccine skeptic: Health and Human Services Secretary Robert F. Kennedy Jr.

Losing would have been “a terrible result,” said Washington attorney Andrew Pincus. Insurers would have been free to quit paying for the drugs, screenings and other services that were proven effective in saving lives and money.

But winning means that “the secretary has the power to set aside” the recommendations of medical experts and remove approved drugs, he said. “His actions will be subject to review in court,” he added.

The new legal fight has already begun.

Last month, Kennedy cited a “crisis of public trust” when he removed all 17 members of a separate vaccine advisory committee. His replacements included some vaccine skeptics.

The vaccines that are recommended by this committee are included as preventive services that insurers must provide.

On Monday, the American Academy of Pediatrics and other medical groups sued Kennedy for having removed the COVID-19 vaccine as a recommended immunization for pregnant women and healthy children. The suit called this an “arbitrary” and “baseless” decision that violates the Administrative Procedure Act.

“We’re taking legal action because we believe children deserve better,” said Dr. Susan J. Kressly, the academy’s president. “This wasn’t just sidelining science. It’s an attack on the very foundation of how we protect families and children’s health.”

On Wednesday, Kennedy postponed a scheduled meeting of the U.S. Preventive Services Task Force that was at the center of the court case.

“Obviously, many screenings that relate to chronic diseases could face changes,” said Richard Hughes IV, a Washington lawyer and law professor. “A major area of concern is coverage of PrEP for HIV,” a preventive drug that was challenged in the Texas lawsuit that came to the Supreme Court.

By one measure, the Supreme Court’s 6-3 decision was a rare win for liberals. The justices overturned a ruling by Texas judges that would have struck down the popular benefit that came with Obamacare. The 2012 law required insurers to provide at no cost the preventive services that were approved as highly effective.

But conservative critics had spotted what they saw was a flaw in the Affordable Care Act. They noted the task force of unpaid medical experts who recommend the best and most cost-effective preventive care was described in the law as “independent.”

That word was enough to drive the five-year legal battle.

Steven Hotze, a Texas employer, had sued in 2020 and said he objected on religious grounds to providing HIV prevention drugs, even if none of his employees were using those drugs.

The suit went before U.S. District Judge Reed O’Connor in Fort Worth, who in 2018 had struck down Obamacare as unconstitutional. In 2022, he ruled for the Texas employer and struck down the required preventive services on the grounds that members of the U.S. Preventive Services Task Force made legally binding decisions even though they had not been appointed by the president and confirmed by the Senate.

The 5th Circuit Court put his decision on hold but upheld his ruling that the work of the preventive services task force was unconstitutional because its members were “free from any supervision” by the president.

Last year, the Biden administration asked the Supreme Court to hear the case of Xavier Becerra vs. Braidwood Management. The appeal said the Texas ruling “jeopardizes health protections that have been in place for 14 years and millions of Americans currently enjoy.”

The court agreed to hear the case, and by the time of the oral argument in April, the Trump administration had a new secretary of HHS. The case was now Robert F. Kennedy Jr. vs. Braidwood Management.

The court’s six conservatives believe the Constitution gives the president full executive power to control the government and to put his officials in charge. But they split on what that meant in this case.

The Constitution says the president can appoint ambassadors, judges and “all other Officers of the United States” with Senate approval. In addition, “Congress may by law vest the appointment of such inferior officers” in the hands of the president or “the heads of departments.”

Option two made more sense, said Justice Brett M. Kavanaugh. He spoke for the court, including Chief Justice John G. Roberts and Justice Amy Coney Barrett, and the court’s three liberal justices.

“The Executive Branch under both President Trump and President Biden has argued that the Preventive Services Task Force members are inferior officers and therefore may be appointed by the Secretary of HHS. We agree,” he wrote.

This “preserves the chain of political accountability. … The Task Force members are removable at will by the Secretary of HHS, and their recommendations are reviewable by the Secretary before they take effect.”

The ruling was a clear win for Kennedy and the Trump administration. It made clear the medical experts are not “independent” and can be readily replaced by RFK Jr.

It did not win over the three justices on the right. Justice Clarence Thomas wrote a 37-page dissent.

“Under our Constitution, appointment by the President with Senate confirmation is the rule. Appointment by a department head is an exception that Congress must consciously choose to adopt,” he said, joined by Justices Samuel A. Alito and Neil M. Gorsuch.

I’ve watched two disturbing videos in the past day of federal authorities acting with frightening disregard for decency and democracy as they arrest immigrants.

At least, I think they are federal authorities. But these days, who knows?

The alleged officers detaining hundreds if not thousands of people each day in California and across the country are often masked. They sometimes refuse to answer questions, including which agency they represent. They threaten force — and even use it to make arrests of bystanders — when they are challenged.

In the first video I watched, a man in an unmarked car detains another man sitting on a bus bench in Pasadena. The man presumed to be a federal agent has on a vest that simply says “Police” and a cheap black ski mask that covers every bit of his face — the kind that looks like it was purchased on Amazon and that we have previously most associated with criminals such as robbers and rapists. A few of his colleagues are in the background, some also seemingly masked.

If these men approached me or one of my kids dressed like that, I would run. I would fight. I would certainly not take his word that he was “police” and had the right to force me into his car.

In the second video, another presumed federal agent jumps out of his unmarked vehicle and draws his weapon on a civilian attempting to take a photo of the license plate.

Yes — he points his gun at a civilian who is not threatening him or committing a crime. Folks, maybe you consider it a bad idea to try to photograph what may or may not be a legitimate police operation, but it is not illegal. This alleged officer appears to have simply not liked what was happening, and threatened to shoot the person upsetting him. The man taking the photo ran away, but what would have happened had he not?

These actions by alleged authorities are examples of impunity, and it is what happens when accountability is lost.

“It’s terrifying to be assaulted by people that you can’t be sure are law enforcement and who seem to be hiding their identity from you,” David Sklansky told me. He’s a law professor at Stanford and an expert on policing. He said there are times when secrecy by authorities can be justified, but it should be the exception, not the rule.

“The seizure of people by agents of the state who don’t identify themselves as agents of the state is a tool that has a long and ugly history of being used by authoritarian regimes,” he said.

ICE has claimed that its officers have a need and right to remain anonymous because threats and attacks against them have dramatically increased. The agency has been publicizing that its staff has seen a 413% increase in assaults against them, and that they and their families have been doxxed.

Speaking on the New York Times podcast “The Daily,” President Trump’s top border policy advisor, Tom Homan, said that his officers are doing the best they can under difficult circumstances.

“It’s not about intimidation,” Homan said. “ICE officers are wearing masks because they’ve been doxxed by the thousands. Their families have been doxxed. ICE officers’ pictures have shown up on trees and telephone poles. Death threats are sky-high. I know because I’ve been doxxed 1,000 times myself.”

You know what? I believe ICE officers are getting doxxed and threatened.

Any violent attack on law enforcement should be condemned.

And while we are at it, I don’t have any issue with deporting dangerous criminals. For today, I’m leaving aside the issue of whether Trump’s aggressive drive to deport people is good or bad. This isn’t about what is happening with these deportations, but about how authorities are exercising their power.

Threatening a law enforcement official is a crime. Doxxing is a crime. These agencies have the resources to track down, arrest and prosecute anyone who breaks those laws. They should absolutely do that.

Instead, federal authorities are hiding, apparently too frightened of online provocateurs and in-person hecklers to do their duty in plain sight.

But judges are being doxxed and don’t wear masks. Journalists are being doxxed and don’t wear masks. Politicians are being doxxed — and even killed — and are still doing their jobs out in the open. Which raises the question: Is it really not about intimidation?

“Quite frankly, I’ve had lots of guns pointed at me. I’ve had lots of threats against my life,” Lt. Diane Goldstein told me. “I never once wore a mask because I was afraid.”

Goldstein is the executive director of the Law Enforcement Action Partnership, a nonprofit composed of justice system authorities who advocate for better policies. She was also the first female lieutenant in the Redondo Beach Police Department, where she worked for more than 20 years, including on undercover assignments.

She points out that accountability demands some way to attach actions to individuals. Take that officer who pulled the gun on the license plate photographer.

“If one of my officers would have done that, I would have put him on an administrative leave, taken his gun away and initiated an internal affairs investigation,” she said. “There is no constitutional reason for him to jump out of a car and point a gun in that type of aggressive fashion at an ordinary citizen.”

However, we likely will never get to ask that officer what he was thinking — if he saw a threat that justified lethal force — because there is no easy way of identifying him. Forget who he is personally, we don’t even know what agency he is from.

“You have no idea if it’s the FBI, if it’s the DEA, if it’s ICE, if it’s CBP,” said Goldstein, rattling off the acronyms for various federal authorities. “There is no accountability and transparency.”

Sklansky points out that accountability doesn’t necessarily require a name or face. Although there is no law that requires it, federal authorities could simply put their badge number and agency name someplace visible. Voila! Accountability and safety for officers.

“Lots of law enforcement works this way,” he said.

Failing to provide any kind of trustworthy identification causes its own dangers, both Sklansky and Goldstein told me. People are required by law not to interfere with law enforcement doing their duty. But if you don’t know it’s law enforcement and fear you are witnessing an attack or are the victim of one, the situation is different.

Goldstein said that she worries about violence if bystanders think they are in the midst of a crime, or that local law enforcement will be called to intervene in what appears to be a kidnapping or assault.

“People can’t tell if they’re crooks or they’re law enforcement,” Goldstein said of officers who mask or hide their affiliation.

“Someone’s going to get hurt. A citizen is going to get hurt, a local cop is going to get hurt or a federal agent is going to get hurt. Their tactics are dangerous and putting the community in danger,” she said.

That fear that people are posing as law enforcement is real. Last week, a Minnesota legislator and her husband were killed by a gunman posing as a police officer. That same gunman earlier also went to the home of another politician and his wife and shot them as well, though they are expected to survive — their 28-year-old daughter called 911 after being shielded from the bullets by her mom.

The shooter banged on the front door of his victims, demanding to be let inside because he was law enforcement. Since then, articles are popping up, pointing out that people have a right to ask questions before just assuming that guy with the badge is really a cop.

After that attack, St. Cloud Police Chief Jeff Oxton sought to quell fears of fake cops roaming the streets by putting out a statement that stressed that it is “important that our public has confidence in the identification of our police officers.”

Of course it is important. In fact, it’s vital to democracy and public safety. The might of law derives from our trust in those empowered to enforce it, our willingness to respect their authority because it comes with both boundaries and responsibilities. The death of George Floyd and the protests that followed show just how tenuous, and how vital, that trust is.

An anonymous man in a ski mask does not inspire that trust, and does not deserve it.