October 6, 2025 — Morning Report

Trump declared Portland under attack by radical left anarchists and federalized the Oregon National Guard to deploy there. The district court (a Trump appointee) reviewed the actual record and found only a handful of incidents over the summer — a fire on a barricade, an assault on an officer — both of which took place months earlier. Over the latter half of the summer, protests had calmed dramatically, with most gatherings of fewer than 20 people. Bryan: "In Portland, fewer than 20 people to protest is just brunch." The judge found the president lacked colorable authority to federalize the Guard and that his factual predicate was "simply untethered to the facts." The court issued a TRO barring use of the Oregon National Guard through October 18. The administration immediately appealed to the Ninth Circuit — and simultaneously tried to route around the order by ordering the *California* National Guard into Oregon instead, since the TRO only mentioned the Oregon National Guard. Oregon filed a second TRO the same night covering use of any National Guard. The judge held an emergency hearing and issued the second TRO before midnight, barring the feds from federalizing any National Guard troops for deployment into Oregon.

Building on the Illinois v. FEMA pattern (federal funds conditioned on immigration enforcement cooperation), the administration cut NYC's terrorism prevention budget as retaliation for the city's non-compliance with ICE. The case was filed Tuesday; the judge issued a "scathing" TRO on Wednesday; by Friday the administration had withdrawn the policy entirely under massive public pressure — citing 9/11, the administration's own decision to cut counterterrorism funding to New York became politically untenable in a matter of days. Bryan noted the case as an example of the funding-conditioned-on-immigration pattern hitting a political third rail: most of the previous funding conditions (FEMA disaster funds, SNAP data-sharing) generated less public reaction; terrorism funding for New York City post-9/11 was a different category. The rapid withdrawal before the case was fully litigated means no merits ruling.

Oral argument preview for the first day of the SCOTUS fall term. In Villarreal, a defendant in a murder case was mid-cross-examination when the judge called an unexpected overnight recess. To prevent defense counsel from coaching the defendant on his testimony (taking advantage of an unusual mid-examination break that wouldn't occur under normal trial sequencing), the judge restricted overnight consultation: the defendant and his attorney could speak, but not about the substance of his testimony. Bryan walked through both arguments. For the defendant: this may be exactly when a lawyer is needed most — it's the single most important day of his life and it just became two days; and he's not a lawyer, so he may have legal questions that require counsel's guidance. For the state: the adversarial system is designed to reach the truth; mid-examination access to counsel could allow lawyers to identify and patch inconsistencies that cross-examination was designed to expose; the overnight recess created an unusual opportunity that normal trial procedure doesn't contemplate.

Oral argument preview for the afternoon session. Bryan walked through the Erie doctrine background: Erie Railroad v. Tompkins (1938) established that in diversity jurisdiction cases (where federal courts hear state-law claims because the parties are from different states), the federal court must apply the state's substantive law while following federal procedural rules. This prevents forum shopping — you can choose to sue in federal court but you don't get a different legal framework as a result. The problem is the line between "substantive" and "procedural" is genuinely unclear in the middle cases. Berk v. Choy presents one: Delaware has a law requiring a plaintiff in a medical malpractice case to obtain an expert witness certification that the claim is non-frivolous before filing. The lower courts dismissed the case because the plaintiff didn't comply — treating the rule as substantive Delaware law that applies in federal court. The plaintiff argues that Federal Rule of Civil Procedure 8, which requires adequate statement of a claim, does the same filtering job as the Delaware rule; if a federal rule already covers the ground, the federal rule should govern, making it procedural. Bryan noted the Erie doctrine is one of the most complicated areas he studied, pointed listeners to flowcharts in his shared documents.