June 19th: The Train Arrived. We Just Didn't Hear the Whistle.
On constitutional change that happens with legal reasoning instead of drama
We were all waiting for high noon. The dramatic showdown. The moment when constitutional law would either triumph or collapse in spectacular fashion.
Instead, the 9th Circuit delivered something much more dangerous: a carefully reasoned, unanimous decision that sounds moderate while fundamentally altering the balance of power in America. The train arrived right on schedule. We just didn't recognize it because it looked like normal judicial reasoning.
The Quiet Revolution
Yesterday's ruling reads like a victory for constitutional moderation. The court rejected Trump's claim of "unreviewable" presidential power. They preserved judicial review. They wrote thoughtfully about separation of powers and federalism.
And then they established a standard so deferential that judicial review becomes purely ceremonial.
"Highly deferential" doesn't sound revolutionary. It sounds reasonable, measured, rooted in precedent. But when courts will only intervene if presidential decisions are "obviously absurd or made in bad faith," they've essentially created unreviewable power while maintaining the illusion of oversight.
The Perfect Constitutional Coup
This is how constitutional systems actually change in mature democracies—not through dramatic confrontations, but through incremental adjustments that preserve all the forms while gutting the substance.
The 9th Circuit preserved every constitutional principle while making each one meaningless:
Judicial Review: Exists in theory, irrelevant in practice when the standard is "some factual basis."
Federalism: States can object, but governors have "no veto power" over federal military deployment.
Separation of Powers: Courts can review, but must be "highly deferential" to whatever the executive claims.
Rule of Law: Federal officials can ignore district court orders while appealing to friendlier judges.
The Unanimous Facade
The decision's unanimity across Trump and Biden appointees makes it seem reasonable, bipartisan, institutionally sound. But unanimity around a terrible precedent doesn't make it less terrible—it makes it more dangerous because it appears legitimate.
Three judges from different political backgrounds all agreed that presidents can federalize state troops with minimal oversight. This isn't partisan overreach; it's institutional capitulation dressed as judicial restraint.
What Actually Happened
Yesterday, the 9th Circuit:
Established that federal courts will rubber-stamp military deployments with minimal scrutiny
Ruled that state sovereignty is purely symbolic when federal power wants something
Created precedent for ignoring district court orders by immediately appealing
Blessed the occupation of Los Angeles while calling it moderate judicial review
But because they rejected "unreviewable" power and used careful legal language, it feels like constitutional balance rather than constitutional surrender.
The Train We Didn't See Coming
We were watching for tanks in the streets, dramatic confrontations, obvious authoritarianism. Instead, we got a scholarly opinion citing Sterling v. Constantin while establishing that presidential military authority is essentially unlimited as long as you can point to some protesters throwing bottles.
The constitutional coup happened with footnotes and precedents rather than force. The result is the same—executive power unconstrained by meaningful judicial oversight—but it comes wrapped in legal reasoning that makes it seem normal.
The Day After High Noon
Gary Cooper's Will Kane faced his enemies at high noon. The showdown was clear, dramatic, decisive. Our constitutional Western ended differently: the train arrived carrying lawyers with briefcases instead of gunfighters, and they didn't shoot the sheriff—they just rendered his badge meaningless while letting him keep wearing it.
Judge Breyer's comparison to King George III now seems quaint. Kings were at least honest about their power. We've created something more sophisticated: a system where presidential authority is practically unlimited but clothed in judicial deference and constitutional language.
The Precedent Express
The 4,000 National Guard troops in Los Angeles aren't the real story. The real story is the legal infrastructure now blessed by a federal appellate court: future presidents can federalize any state's military forces, deploy them against domestic opposition, ignore inconvenient district court orders, and count on appellate judges to find constitutional reasons to let them continue.
All accomplished through unanimous, measured judicial reasoning that preserves every constitutional form while gutting every constitutional constraint.
Juneteenth Irony
The decision came down on Juneteenth—the day commemorating when enslaved people in Texas finally learned they were free. The bitter irony: we may have learned yesterday that we're no longer free, but the news came disguised as thoughtful constitutional analysis.
The train arrived. The constitutional order changed. We're all still standing on the platform wondering what happened because it looked like normal judicial procedure rather than institutional revolution.
But revolutions in constitutional democracies don't announce themselves with manifestos. They arrive with legal opinions that sound reasonable while fundamentally altering who holds power and how they can use it.
High noon came and went. The sheriff kept his badge. The outlaws took over the town. And everyone agreed it was done according to law.