Pres. Trump stated his intention to activate Oregon National Guardsmen to protect “war ravaged Portland.” The state then sued. Early Saturday, Oct. 4, U.S. District Judge Immergut issued an order finding that there is no ongoing violence or crisis that would justify a call-up in accordance with 10 U.S.C. §12406. Sec. 12406 specifically allows a President to call up National Guard soldiers in the event of invasion, rebellion or the President is unable to execute the laws of the United States. The court then found explicitly that no such conditions exist. Whatever violence was occurring at the ICE facility in Portland had peaked in June, 2025, months before Pres. Trump called for the Guard. The court’s opinion includes over 11 pages of deep detail regarding the protests in Portland.

The Judge described in great detail the protests that did occur – mostly involving minimal violence. Judge Immergut noted that the issue is not whether the condtions matched the President’s description, but whether his claims were “colorable.” She meant the issue was whether his claims were kind of, sort of close to reality. The Judge found they did not come close to reality. She explained that the President is entitled to a “great deal of deference.” “But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground.” In this sentence, the Judge is saying “do not blow smoke at me.”

DOJ did not help its case by pointing to violence occurring elsewhere. Too, the president’s own statements were simply far beyond what was actually then occurring. The Judge did not say it, but what she meant was the President’s own words suggest his duplicity.

Duplicitous Claims

When both the lawyer and the client are essentially found to be exagerrating, you know your case is lost. The order is clear. The Judge made a specific, detailed finding that there was simply no violence to meet the requirements of Sec. 12406. See Judge Immergut’s decision here. This is a stark example of the dangers of over-the-top claims in any legal brief.

So, later that same day, Secy. of Defense Hegseth’s stated his intention to send the California National Guard and the Texas Guard to Portland. Not surprisingly, that plan got under the Judge’s skin. One party to the lawsuit was ignoring some 11 pages in the order and instead focusing only on the part that said they cannot call up Oregon Guardsmen. Judge Immergut then did something This author has never seen or heard of: she ordered a hearing for 10:00 p.m. Sunday, Oct. 5. At that hearing, she hammered the DOJ attorney, Eric Hamilton, asking why the United States believed they could send Guardsmen from other states to Portland.

Any attorney would, should be embarrassed at having to admit in court a deliberate attempt to circumvent a judge’s order. Hamilton simply argued that he believed the order only applied to Oregon Guardsmen. Even making that argument, he shows himself to lack reading comprehension or is simply dishonest. This attorney is constantly amazed at Trump’s ability to find lawyers so willing to roll the dice with their law licenses. See Politico news report here for more information.

Mr. Hamilton asked the Judge to put her decision on hold, while the administration appeals. Perhaps, ten months ago, the Judge would have said yes, expecting the Dept. of Justice to act responsibly. But, the Judge said no. When you lose your credibility in court, you really do lose your credibility in court.

Former Department of Justice officials are “stunned” at what they are seeing today. Pres. Trump openly urged AG Pam Bondi to indict two of his political opponents. The US Attorney for the Eastern District of Virginia resigned under pressure to cook up some basis for indicting James Coney. Other Federal prosecutors in Maryland, Georgia and western Virginia – who are also dealing with politically sensitive investigations – may soon face similar political pressure.

Erik Seibert, the former US Attorney for the eastern District of Virginia was pressed by the President to indict James Coney and Letitia James, the New York Attorney General. Mr. Seibert, however, was forced to resign after he declined to issue such indictments. Former US Attorney Carol Lam pointed out that in prior administrations, these sort of events would have prompted Congressional investigations and Inspector General filings. Added Ms. Lam, “We’ve never seen anything even approaching this level of interference with the day-to-day job of prosecutors.”

Pres. Trump’s open message to AG Bondi to prosecute soon Comey and others was “shocking” to anyone who has ever worked at the Dept. of Justice, said former US Attorney Barbara McQuade.

Federal prosecutors in Maryland are probing alleged mortgage fraud by Sen. Adam Schiff and alleged violations of classified information by John Bolton. Overseeing the cases is career prosecutor Kelly O. Hayes. Pres. Trump appointed Hayes interim US Attorney in Maryland. Hayes has met in recent weeks with Ed Martin, a political appointee at DOJ and fervent Trump loyalist. See ABA Bar Journal report here for more information.

The Charlie Kirk supporters are getting amped up about firing anyone who disparages the late activist. Secy. of Defense Pete Hegseth has said explicitly that he and DOD will “track” DOD staffers and military members who say negative things about Charlie Kirk. Ok, but is that lawful? In a country with free speech, can your employer fire you for political statements?

Private sector employers can indeed fire a person for making comments outside of work. The First Amendment of the U.S. Constitution only applies to state and local governments. The National Labor Relations Act allows workers to discuss the “terms and conditions” of their jobs. But, otherwise, a private sector employer can fire an employee for any silly reason. That would be true in any state with at-will employments. Some 40 states have at-will employment. Texas is an at-will state.

Dept. of Defense

It is very unusual for the Department of Defense to indicate it will “track” DOD employees who say negative things about Charlie Kirk. Mr. Kirk was not in the military chain-of-command. In a statement on twitter/X, spokesman Sean Parnell stated: “It is unacceptable for military personnel and Department of War (Defense) civilians to celebrate or mock the assassination of a fellow American.” But, there is no apparent reason – other than stark politics – why the military should care what is said about a murdered activist. It is terrible that Mr. Kirk was killed. But, he had no supervisory responsibility in DOD.

Disparaging persons in the chain-of-command would lead to concerns about good order and discipline. But, Mr. Kirk had no such role. And, of course, the First Amendment does apply to Executive branch departments. It is ironic that folks are trying to silence the free speech of persons who themselves are discussing a free speech activist.

The First Amendment does applies to actions taken by state and local governments. So long as a school teacher or a state employees is talking within their personal capacity about Mr. Kirk or any other political issue, they enjoy free speech protection. See San Antonio Express News report here for more information. For more information on free speech rights for government employees, see the ACLU website here.

I have practiced law for some 30 years and never heard the term “shadow docket.” But, it has now become a very large deal in 2025. Erwin Chemerinsky, Dean of Berkeley Law School, wrote a piece in the ABA Bar Journal explaining this revolution in Supreme Court practice. The shadow docket has become paramount. The shadow docket refers to the practice of litigants at the district court level bypassing the court of appeals to file an emergency request with the U.S. Supreme Court. Such motions used to occur only in regard to state executions. If someone was set to be executed in a few weeks and he believed he had good grounds for appeal, it made sense to apply to the Supreme Court for emergency consideration. Otherwise, submitting an appeal through the Federal courts of appeal courts would require a couple of years.

Generally, the Supreme Court rules on these emergency motions with little or no explanation. The idea is to hold an expedited process. But, how can such brief rulings serve as precedent? Until this year, they never did serve as precedent. How can one or two lines hold precedential value?

Mr. Chemerinsky tells us they cannot. Yet, a recent decision from the Supreme Court insisted that those terse rulings on emergency motions do indeed serve as precedent.

Explosion in Emergency Motions

But, the current administration has taken those emergency motions to never before seen limits. In 2024, there were 44 matters on the emergency docket. In 2025, the court has seen 113 emergency motions. These motions are not the subject of extensive briefing. There are no amicus briefs. They see no review at the court of appeals level. They completely bypass the courts of appeal.

An important appeal concerned the President’s power to fire members of the boards of quasi-independent boards. Precedent since 1935 held that the President lacked that authority. Yet, in ruling on an emergency motion in May, the Supreme Court stayed the lower court’s decision preventing the firing of those board members. The court said:

“The stay also reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”

Trump v. Wilcox, No. 24-966) May 22, 2025). See that decision here. It was a whole one and one-half pages regarding a very weighty issue. This ruling effectively overruled the holding in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). A 90 year old decision is overruled with little or no real discussion.

Then in a separate case, again regarding an emergency motion, the Supreme Court fussed at the lower court for not following its “precedent” in Trump v. Wilcox. So, the Supreme Court accords greater weight to a 1.5 page long decision over a 90 year old decision. This is likely the first time ever that a Supreme Court has treated a ruling on the emergency docket as actual precedent, says Dean Chemerinsky. This is simply and judging. Judging is a craft like any other. This is not quality judging. See ABA Bar Journal report here for more information.

As a young National Guard officer, my colleagues and I discussed the Posse Comitatus Act often. We always knew that as Guardsmen. we would be called up for national disasters. But, we all knew there were limits to out authority. We knew we could not perform law enforcement functions except in specific circumstances, such as a rebellion. Yet, the Trump administration wants to disregard some of those limits. In a very critical decision, Judge Charles Breyer finds that the Trump administration openly and directly disregarded the limits of the Posse Comitatus Act. Judge Breyer even states flatly that Pres. Trump is trying to create a national police force with himself as its chief of police. Opinion, p. 2. It is very rare that Federal judges draw such stark conclusions. But, there is evidence for the Judge’s conclusion.

After finding that the plaintiffs have standing for this suit, the court gets to the meat of the matter. It finds that the Dept of Defense, from the highest levels, approved using the Guard in ways that directly contradicted the provisions of the act.

No Law Enforcement Means no Law Enforcement

The act provides that except as provided “expressly” in the Constitution or an act of Congress, no part of the U.S. military may be used to enforce laws. 10 U.S.C. §1385. The court finds that the Constitution gave the bulk of the power over the military to Congress. Congress passes the laws. The President is then required to enforce them. During Reconstruction, U.S. soldiers were in fact used to enforce voting rights legislation in the South. In response to that use, Congress passed the Posse Comitatus Act (Latin for “can accompany”) in 1878. Congress did not particularly object to that usage during Reconstruction, but it realized that it should be limited.

The court first dispenses with DOJ’s very unique contention based on 10 U.S.C. §12406(3) – that the President can do with federalized Guard troops whatever he cannot do with regular military forces. Op., at 26. The court notes that even the Department of Defense’s own publication on the Posse Comitatus Act does not make such a claim. No other entity has made such a claim, says the Judge. Indeed, the reasoning for such a claim does not withstand scrutiny.

Faithfully Execute the Laws

The Defendants claim the “take care” clause of the Constitution – that the President take care to faithfully execute the laws of the United States – supports its argument. But, adds the Judge, that is non-sensical. If the President is to take care to enforce the laws faithfully, he must then honor the proscriptions of the Posse Comitatus Act.

But, the most difficult evidence for the Defendants is the training it provided to the newly activated Guardsmen/women. The commanders of the what became Task Force 51 provided two weeks of training to the Guard forces and the Marines. Part of that training included explaining the limits of the Posse Comitatus Act. The brochure produced by DOD itself, probably a long-standing brochure, specifically listed these tasks as forbidden by the Posse Comitatus Act:

  • Security patrols
  • Traffic control
  • Crowd control
  • Riot control

This was an actual training slide used in that two week training. Yet, verbally, those soldiers and Marines were told they could in fact conduct those tasks. This instruction “came all the way from the top of Department of Defense.” DOJ objected to this testimony, because it violated attorney-client privilege. That means it is surely based on legal advice by sone attorney somewhere. But, the Judge noted rightly that using that testimony at trial waived the privilege. (That suggests to that DOJ tried to use this testimony in an “offensive” way – not to defend itself, but to score some point). Op., p. 7-8.

And, in fact, the Guard did conduct those very missions in various incidents. The Judge did not focus on one or two arrests or detentions made by the Guard. He apparently saw those few arrests as de minimis. But, he noted the systemic reliance on using the Guard in those four ways in violation of the act.

MacArthur Park

Once incident in particular caused the Judge concern. Department of Homeland Security planned to conduct a show of force type operation in MacArthur Park. Initially, DHS wanted to have the Guardsmen in the midst of the park – a use specifically approved by Secy. Hegseth. The military Commander, Maj-Gen. Sherman objected to placing them in the middle of the park while ICE agents swept the park. Chief Bovino of DHS then accused Maj-Gen. Sherman of lacking loyalty to his country. The Judge noted this incident in a footnote, finding that it helped show the state of mind of the Defendants.The Judge saw this entire show of force as a political theater, and as an abuse off the Posse Comitatus Act. Op. p. 12.

The court noted that the Guard could indeed be used to protect federal buildings and property. But, that sort of task was not law enforcement. Protecting federal property is not implicated by the Posse Comitatus Act, at all. It is entirely the province of the courts to determine what the law is. That has been the state of law in the United States since the Marbury v. Madison decision in 1803. There is a well-developed body of law interpreting the Posse Comitatus Act. No case supports the Defendants’ broad interpretation.

(It is probably safe to say that when any judge finds it necessary to invoke the ancient precedent of Marbury v. Madison, that the Defendant has lodged some specious arguments).

As Pres. Andrew Jackson himself said during the Nullification Controversy:

“[U]ntil some act of force is committed or there is some assemblage of an armed force … to resist the execution of the laws of the United States, the Executive of the United States has no legal [and] constitutional power to order the militia into the field to suppress it.” 

The Judge then enjoined the use of the Guard to perform those four above mentioned tasks. And, us regular people are left to wonder how any serious lawyer could envision otherwise. See the court decision here in Newsom v. Trump, No. 25-CV-04870 (N.D. Calif. Sept. 2, 2025).

Alex Jones is faced with losing his Infowars website again. It was sold once in bankruptcy court. But, another judge later found that sale was not in the best interest of Alex Jones’ creditors and did not follow correct procedure. Since that ruling, a state district court judge has ordered that a state-appointed receiver will sell the Infowars website. The goal is to try to satisfy the $1.3 billion judgment agent Mr. Jones. I wrote previously about the lawsuits against Alex Jones here and here.

The Sandy Hook Elementary families have been trying to collect on their judgment against Mr. Jones for three years. The Onion bought the website in 2024, but a bankruptcy judge stopped the process, saying the process did not satisfy procedural requirements.

Mr. Jones on his podcast, of course, complained about the most recent order. See NPR report here for more information.

An increasingly common employment agreement is one which requires the employee to forfeit a part of his/her salary if certain conditions are not met. In Rieves v. Buc-ee’s, 532 S.W.3d 845 (Tex.App. Hou. (14th District.) 2017), the Fourteenth Court of Appeals addressed one such agreement. In her agreement, Kelley Rieves agreed to give up some of her pay if she did not work at least 48 months and give six months notice before leaving. Buc-ees described that pay as “retention pay” in the agreement. A year after Rieves quit, Buc-ees sent her a letter seeking the re-payment of $66,000.

The employer filed a motion for summary judgment, arguing this “retention pay” was loyalty pay, comparable to stock options. The trial court agreed and granted the employer’s motion.

Restraint on Free Trade

On appeal, the employee argued this forfeiture clause acted as a restraint on free trade. As such, the clause violated Free Enterprise and Antitrust Act, codified at Tex.Bus. & Com.C. §15-05(a). The Supreme Court of Texas, noted the Fourteenth Court, has concluded that covenants limiting employees’ professional mobility are unlawful restraints under this statute unless they fall with the exceptions allowed in the Covenants Not to Compete Act. That act prohibits unreasonable limits on the ability to change employers as to geography, scope of activity to be limited and as to time.

Here, Buc-ees has sued the former manager for $66,000. This forfeiture clause would apply even if Buc-ees fired her on her last day of work of the 48 month time requirement, if she quits to take a non-competing job, or if she quits to take no job at all. This forfeiture clause has no time limit, no geographical limit and no limit as to the scope of work to be restrained. That means it fits none of the exceptions allowed for covenants not to compete.

Buc-ees argued this forfeiture cause simply amounted to loyalty pay, like stock options. The appeals court rejected that argument. Forfeiting pay requires the employee to disgorge a substantial part of her pay, even if Buc-ees fires her. And, the longer she works for Bus-ees, the larger becomes the penalty if she quits her job. And, unlike stock options, the compensation is actually paid to the employee. It was not a bonus which was promised at the conclusion of some event.

See the opinion here.

A frequent issue for employees in today’s workplaces is drug testing. All too often the drug testing laboratory makes a mistake. The lab mistakenly finds Joe Worker tested positive for cocaine. But, it is a false positive. What does Joe do? The Texas Supreme Court re-affirmed what it said in prior cases: Joe can do nothing.

In Houston Area Safety Council v. Mendez, 671 S.W. 3d 580 (Tex. 2023), Guillermo Mendez received a false positive for cocaine. Mendez was a pipefitter. He had been tested many times in his previous 25 years. He was employed by Valero Ardmore Refinery. Valero referred him to Houston Area Safety Council for the drug test. HASC then sent his sample to Psychemedics for testing. Psychemedics produced a positive result. A second sample was then sent a different collection entity, DISA Global Solutions. The second sample came back negative. Mendez then sent a third sample to a third lab at his own expense, which also came back negative.

Mendez was required to complete a substance abuse course, which he did. But, Valero still refused to take him back. His actual employer, Turnaround Welding then fired him. Mendez won in front of the court of appeals. The appellate court found that the laboratory owed a duty of reasonable care to Mr. Mendez. On appeal to the Texas Supreme Court, however, the higher court disagreed,

The Texas Supreme Court noted that lower courts around the country have split whether an employer owes a common law duty to its employees. Only five state supreme courts have found such a duty. The court noted that the laboratory assured the court that the risk of an error was so low as to be essentially “non-existent.”

Foreseeability

The court acknowledged that the court of appeals found that the labs were in the best position to safeguard the drug tests. Thus, they should be held responsible. But, the Supreme Court disagreed, finding that the risk of harm lay with the employer. It was the employer who decided whether to terminate a worker due to a false positive. The lab has no control over what the employer does. If labs were held responsible, they would or could transfer that responsibility to employers via indemnity agreements.

So, the Texas Supreme Court found no one was responsible for the employee’s false positive. But, at his apparent age, this was a life-defining moment. Anyone’s career would be placed in great jeopardy due to a positive drug test. Yet, the Supreme Court engaged in rationalization and sophistry. It found the lab was virtually never at fault. Then, the court found no causal relationship between the false positive and the employer’s action. The court said the lab had no control over what the employer does and no knowledge of what they might do. The court essentially erected an artificial barrier between the actions of the lab and the employer. Any lab would know that termination was a possible, if not likely outcome of a positive drug test.

The Texas Supreme Court accepted the lab’s argument regarding foreseeability simply based on the lab’s broad assurance that the chances of a false positive are virtually “non-existent.” Virtually non-existent means some chance is in fact existent. I get those calls from frustrated workers with false positives often enough to know they do occur. They occur often enough that foreseeability is an issue. See the decision in Houston Area Safety Council v. Mendez here.

On various social media platforms, we can express various emotions with emojis. Sad face means sad. Frowning means anger, dislike, etc. But, some emojis are less clear. What does a fire emoji mean? What does a winking face mean? Those emojis have slowly been creeping into caselaw. In 2004, an emoji was part of a lawsuit filed in the Eastern District if Virginia. In 2016, there were at least 26 cases involving emojis referenced in court opinions. In 2023, there were more than 200 such opinions.

Eric Goldman of Santa Clara University School of Law researches court opinions involving emojis and emoticons. The 2023 case referred to a wide range of emojis, including heart eyes, pigs, skulls, and devils. Entire conversations across Snapchat can involve nothing more than emojis. Context is everything, says Mr. Goldman. One dispute involved Bed Bath and Beyond investor Ryan Cohen. In 2022, Mr. Cohen posted a tweet responding to a CNBC story that predicted the company’s share would drop. Cohen re-posted the story with a photo of a woman smiling – with the comment “At least her cart is full” and an emoji of a smiling moon. Other investors said they interpreted the emoji as a sign that the Mr. Cohen believed Bed Bath & Beyond stock would rise to the moon. They saw that post as advice that investors should buy or hold onto their investments, according to court pleadings.

Fraud

In 2023, Judge Trevor McFadden, sitting for the U.S. District of Columbia district court, found that Mr. Cohen and his venture capital firm would have to face plaintiff’s’ claims based on fraud. The plaintiffs claimed the smiley moon emoji was a fraudulent misrepresentation. Judge McFadden wrote that the smiling moon was “plausibly misleading.” The judge was probably addressing a motion to dismiss.

In a separate suit, Judge Ho in the Southern District of New York found that two shareholders could not force Mr. Cohen to return profits from selling his shares on Bed Bath and Beyond. Judge Ho found that the shareholders’ claims were moot due the bankruptcy of the company.

One issue is that interpreting emojis can be generational, says Prof. Leslie Y. Garfield Tenzer of the Elisabeth Haub School Law at Pace University and author of the Emoji Legal Dictionary. That dictionary is posted on the website of her law school. Prof. Tenzer points out that an eggplant emoji is just a vegetable to an older person. While, a younger person would see a symbol for a penis.

The other issue is how to address the emoji issue. Some judges would see the use of emojis as a fact issue, best decided by a jury. While other judges view the use of emojis as a question of evidence which require a ruling by the judge.

See Dec/Jan, 2024-25, Vol. 110, No. 6 edition of the ABA Bar Journal for more information.

A recurring issue in retaliation lawsuits concerns the temporal connection between opposing discriminatory practices and the resulting discrimination. Fifth Circuit precedence suggests that a temporal connection alone that extends over four months is too long to infer a connection. That tension is vividly demonstrated in Stamps v. University of Texas System, No. 24-CV-00249 (W.D. Tex. Nov. 13, 2024). Prof. Stamps was employed at University of Texas at Austin as a professor of music. He had worked there for five years.In 2020, he reported to the school’s Office of Inclusion and Equity alleged sexual misconduct by administrators. Two weeks later, his contract was terminated. That series of events then led to a lawsuit against U.T. in Austin.

Dr. Stamps then moved to San Antonio. He applied for a teaching position with University of Texas at San Antonio. On Jan. 20, 2022, the UT System, not UTSA, notified Dr. Stamps that he was not selected. This position was known as the DH position.

On July 12 2022, he interviewed with UTSA for a part-time position in their music department. In his interview Dr. Stamps explained how he came to leave UT at Austin and mentioned his lawsuit against UT at Austin. He was hired for part-time position to teach an online class in which he had limited contact with students. Dr. Stamps was essentially overqualified for this position.

Tenure Track Position

On Oct. 14, 2022, Stamps applied for a tenure track position in the Music department. This was known as the DM position. In January, 2022, the plaintiff learned he was not selected for the position. The plaintiff filed a complaint with UTSA’s EEO office. Later, in his lawsuit, Dr. Stamps learned of a text exchange a member of the search committee expressed concern about hiring the “crazy” and “challenging” professor. That text referred to the plaintiff’s lawsuit against UT at Austin.

The Magistrate Judge pointed to Fifth Circuit caselaw which disfavored claims of retaliation based solely on timing – if that connection was longer than a few weeks or a few months. The Judge granted UT’s motion to dismiss – based on Rule 12(b)(6) – regarding the DM position. The Court noted that the Plaintiff did not plead that UT at San Antonio was aware of his lawsuit against UT at Austin when it passed him over in January 2022. Even so, the temporary connection from 2020 to January, 2022 was just too long.

Temporal Nexus

Regarding the DM position, the plaintiff told the search committee in July, 2022 about his lawsuit against UT at Austin. He was then told in January, 2023 that he would not get the tenure track position at UTSA. Here the timing is about 6.5 months. The Court found this was sufficient nexus between the two events. Plus, the text exchange amounts to more evidence than just a temporal connection.

Dr. Stamps did not have a lawyer at this point. He had written and filed his own response to the employer’s motion to dismiss. The Judge did not say so, but he was construing the pleadings of the pro se plaintiff liberally. The court also noted that during this 6.5 month time period, UTSA did hire Dr. Stamps. It hired him for a one semester job for which he was over-qualified. Then, upon the conclusion of the semester, it moved that part-time position to the job description for the tenure track position for which Stamps was turned down. Too, Stamps’ interview where he mentioned the UT lawsuit was in October, 2022. That means there was only a two month gap between the time when the search committee learned about his opposition to discrimination and the adverse personnel action.

The Judge described the causation nexus as plausible, but just “barely.” So, the Judge granted UT’s motion to dismiss in part and denied it in part.