“We conclude that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States,’” the affirming judges wrote. “The evidence the President relied on reflects a ‘colorable assessment of the facts and law within a ‘range of honest judgment.’’”
This is the exact kind of situation in which the right would start to bemoan “activist judges.” They went on to compare the anti-ICE protests in Portland to Shays’s Rebellion in the eighteenth century, which resulted in nine deaths, dozens of woundings, and two eventual executions.
“The President federalized the militia to ensure that the law could be fully enforced ... Shays’s Rebellion … occurred during the Articles of Confederation period,” the affirming judges wrote. “General Washington feared that American republicanism might fail as the ‘mobbers’ tried ‘to shut down courts’ and attacked government officials who ‘earnestly [sought] to obey [and enforce] the laws that the people themselves had authorized.’ This episode left an indelible mark on the Founders. They designed the Constitution to provide a Union that could safeguard the lives of law-abiding Americans trying to enforce the nation’s laws the next time a Shays’s Rebellion arose.”