Why are Europeans turning towards authoritarian and populist demagogues?

Last week, one study by two European think tanks said one-in-three Europeans would vote authoritarian or support a populist party. Among the reasons are the perceived elitism in the traditional left and right-leaning parties.

The centre appears to be eroding, leaving people who are struggling with high inflation, energy, and uncertain futures looking for answers elsewhere.

Opinion polling from the Pew Research Center also found that 69 percent of the French population is dissatisfied with democracy, Italy 62 percent, Poland 47 percent and Spain 68 percent.

All are facing upcoming elections.

Another study, out on Tuesday (27 October), by the US-based Action for Democracy, drew similar conclusions and found that shaky allegiances between far-right parties in Europe are creating the scaffolding for possible future leadership under an authoritarian bent.

I say shaky because populist far-right parties have a notorious track record of finding common ground but then falling apart later.

This article continues, but the full version is available only to EUobserver.com subscribers. Visit account.euobserver.com/membership

More than 27,000 immigrants were informed, this year, that they should leave Portugal. However, only around 800 complied with the voluntary departure notice, according to figures provided by the Minister

The post More than 27,000 immigrants notified to leave Portugal so far this year: only 800 have left appeared first on Portugal Resident.

The parents of the Minneapolis nurse who was fatally shot by federal agents in January said on Tuesday that the government had ignored and misled them.

© Jenn Ackerman for The New York Times

Rep. Ilhan Omar (D-MN) was all smiles as she was asked how she is "holding up" amid a federal investigation into her immigration history. 

The post Ilhan Omar Smiles, Says She Is ‘Good’ amid Immigration Fraud Investigation appeared first on Breitbart.

A 26-year-old ride-hailing driver was stabbed following a late-night trip from Toulouse to Colomiers on Oct. 26.

The incident began in the Rangueil district, where the driver picked up a 14-year-old passenger who was later identified as an unaccompanied minor, according to Fdesouche, citing a report out of La Dépêche.

France: Twerking youths dance on destroyed vehicles at Paris music festival, 243 arrests reported nationwide

When they reached Boulevard Jean-Baptiste-Ingres, the teenager disclosed that he could not pay the fare. In response, the driver locked the vehicle’s doors. The teenager then attempted to climb out of a window before drawing a knife and stabbing the driver, causing an injury to the driver’s hand.

Amid the altercation, the car collided with a lamppost under circumstances that authorities are still reviewing.

Media reported a 10-year-old arrested for attempted murder and rape, but now it turns out he’s a 14-year-old Congolese migrant

Two 16-year-old unaccompanied minors then intervened and ran away with the passenger. Officers from the anti-crime unit quickly located and arrested all three teenagers, taking them into custody. However, the status and nationality of the suspects have not been disclosed.

The investigation is ongoing.

France: Foreigners responsible for 87% of thefts, 61% of sexual violence on Paris public transport

Remix News recently reported on data out of France’s own Interior Ministry revealing that foreigners accounted in 2025 for 87 percent of simple thefts on Île-de-France public transport, 60 percent of robberies, and 38 percent of physical assaults.

The post France: 14-year-old stabs cab driver after refusing to pay fare appeared first on Remix News.

Following his victory in the second round of Brazil’s presidential election, President Luiz Inácio Lula da Silva thanked Spanish Prime Minister Pedro Sánchez for his congratulations.

Sánchez had posted to X: “A great victory for Lula. What has happened in Brazil will happen in Spain.”

¡Gran victoria de @LulaOficial! Lo que ha pasado en Brasil, pasará en España. La remontada del progresismo global acaba de comenzar.

— Pedro Sánchez (@sanchezcastejon) October 26, 2026

Reposting Sánchez, Lula emphasized: “Brazil will stand alongside Spain in defending democracy, social justice, multilateralism, and peace. We are allies in global progressivism!”

Muito obrigado pela mensagem, presidente @sanchezcastejon. O Brasil seguirá ao lado da Espanha na defesa da democracia, da justiça social, do multilateralismo e da paz. Somos aliados no progressismo global!

— Lula (@LulaOficial) October 26, 2026

Spain’s upcoming general elections are scheduled for Nov. 29. Recent polling shows Sánchez’ PSOE at 26 percent, trailing the conservative PP, which stands at 31.2 percent. The right-wing VOX party now stands at 18.6 percent.

Ceuta: Abascal accuses PM Sánchez of lying about mass returns to Morocco and calls for him to be put ‘in the dock’

Following his election defeat in Brazil, Flávio Bolsonaro announced he had been demanded to surrender his passports. He also denied stating that he would leave the country were he to lose the election, something his brother, Eduardo Bolsonaro, had previously told a podcast he had said, according to TOI.

Federal Police agents reportedly delivered the travel ban, issued by Supreme Court Justice Alexandre de Moraes, a central figure in legal investigations involving the Bolsonaro family. The demand is said to be part of a Federal Police investigation into Bolsonaro regarding suspected money laundering linked to online sports betting. 

VOX leader calls out Sánchez mafia after former ally investigated for criminal ties, influence peddling

The order heightens political tensions and accusations of lawfare following the election. Flávio Bolsonaro has stated that he will seek to annul the results, citing voting irregularities tied to a controversial two-hour voting extension at polling stations.

U.S. President Donald Trump chimed in, questioning Brazil’s election outcome and noting a “terrible look.” Trump pointed to the “strange” two-hour extension of Sunday’s polling station closing times, although he has made no indication that he will seek to get involved in the matter. “I’m not running Brazil. I’m running the USA,” Trump told press.

Trump was asked whether he plans to do something about Brazil’s election. “I’m not running Brazil. I’m running the USA.” He says he likes Lula and gets along with him very well, but he called the voting extension very strange. With Bolsonaro planning legal action, that extension could get a much closer look. Writer: Daniyal https://t.co/b9RiPXBTAq

— Mario Nawfal (@MarioNawfal) October 26, 2026

Spain’s upcoming election comes as many in Spain have been alienated by Sánchez’s mass amnesty program for illegal migrants. Data from 2025 indicated that foreigners, who make up 31 percent of Spain’s prison population, commit per capita 500 percent more rapes and 414 percent more murders than Spanish citizens. 

As Spain prepares to legalize up to 1.3 million migrants, two brutal crimes highlight the cost of open borders

The post Spain, Brazil ‘allies in global progressivism’ says Lula after Sánchez congratulates him on his election victory appeared first on Remix News.

Raids in broad daylight by US immigration police have become a daily reality for the Portuguese community in the State of New Jersey, which several Portuguese nationals have described to

The post Portuguese in New Jersey (U.S.) shocked by ICE raids appeared first on Portugal Resident.

On Monday's broadcast of the Fox News Channel's "Special Report," British Ambassador to the U.S. Christian Turner discussed the situation in France and said that "the weight of welfare for aging populations, that's a challenge."

The post U.K. Amb. to U.S. on France: ‘Weight of Welfare’ for Aging, Migration Are Issues appeared first on Breitbart.

Written by Ralf Drachenberg, Annastiina Papunen and Rebecca Zamponi.

General

The European Council will be preceded by pre-summit meetings of European political parties with their respective affiliated EU leaders. Additionally, a group of ‘like-minded’ countries on migration will also meet prior to the start of the meeting. Following a similar pattern, a new group of 17 leaders, including Germany, Belgium and Italy, met by videoconference on 8 June to discuss competitiveness issues.

As usual, the European Council meeting will start with an address by the President of the European Parliament, Roberta Metsola. For the first time, the report of the rotating Council Presidency on the follow-up to the previous European Council conclusions will be given in the presence of the European Parliament President. This report by Cypriot President Nikos Christodoulides will include an overview of the implementation of the ‘One Europe, One Market’ roadmap signed in the margins of the informal meeting of Heads of State or Government in Cyprus in April 2026.

The membership of the European Council has evolved since the last European Council meeting. With the departure of Viktor Orbán, Emmanuel Macron is now the longest serving European Council member continuously in office (since 2017).

European Council meeting

Ukraine

The discussion on Ukraine will start with an exchange of views with Ukrainian President Volodymyr Zelenskyy, who on 4 June 2026 published an open letter to President Vladimir Putin, proposing to end the war through direct engagement between the two leaders. The proposed meeting would take place in a neutral location ‘with active US and European participation’ and ‘the front line today [as] the line from which diplomacy must begin.’. Three days after the letter, President Zelenskyy issued a joint statement with the leaders of France, Germany and the United Kingdom, outlining five conditions for just and lasting peace.Thus, EU leaders may express the EU’s readiness to step up its engagement in peace negotiations.

In his invitation letter to EU leaders, European Council President António Costa underlined the effectiveness of the EU’s ‘two-pronged approach – supporting Ukraine and increasing pressure on Russia’. Concerning support for Ukraine, the European Council is expected to discuss intensifying efforts to rebuild critical energy and civilian infrastructure as well as accelerating the production and delivery of military equipment, notably ammunition, drones and missiles. As regards pressure on Russia, the European Council could reiterate the importance of weakening Russia’s economy and thus its ability to wage war. Following the unveiling of the 21st package of sanctions, which targets heavily the country’s banking system and crypto networks, EU leaders may call for swift adoption of the new package. In parallel, after asking in March 2026 for ‘the potential threat posed to the EU’s internal security by Russian ex-combatants having participated in the aggression against Ukraine to be assessed, the European Council could ask for further work to be carried out to address this threat, and possibly consider banning Russian citizens having served in the country’s armed forces since 2022 from entering EU territory. In addition, the call by 11 Schengen countries for stricter visa rules for all Russian citizens – which follows a surge in visas issued to Russian tourists in 2024 and 2025 – may also be raised.

Although not formally on the agenda, the topic of enlargement could turn out to be the subject of broader discussions. First, because EU leaders are likely to welcome the holding of the Intergovernmental Conference on the accession of Ukraine, and Moldova, to the European Union, and the agreement to open the fundamentals cluster on 15 June 2026. Second, because EU leaders may wish to underline the ‘new impetus’ given to the enlargement process at the EU-Western Balkans Summit in Montenegro on 5 June and reiterate their support for the region’s path to EU membership in line with a merit-based approach. Third, because, after the Franco-German initiative of 4 June 2026 suggesting ways of gradually integrating candidate countries into the EU, the European Council may wish to discuss the ‘new ideas to streamline and accelerate the process,’ which, as President Costa stressed, are currently under consideration. German Chancellor Friedrich Merz had previously addressed a letter to Presidents Costa, von der Leyen, and Christodoulides, proposing to grant Ukraine ‘associate member status’, while offering ‘observer status’ and access to the single market to Western Balkan countries.

Middle East

The European Council is expected to discuss the constantly evolving situation in Iran and the wider Middle East region. After the announced memorandum of understanding between Iran and the United States, which envisages an ‘immediate and permanent’ end of military operations on all fronts, including in Lebanon, EU leaders may welcome the peace agreement and the toll-free reopening of the Strait of Hormuz. Due to be signed on 19 June, the agreement plans to ease sanctions and begin negotiations over nuclear issues. In a joint statement, the leaders of France, Germany, Italy, Cyprus and Greece, as well as Australia, Canada and the United Kingdom, expressed their readiness also to lift sanctions imposed on Iran and work ‘with the US, Iran and regional partners to … achieve a long-term diplomatic settlement’. Ahead of the G7 summit in Evian, President Costa signalled the EU’s willingness to contribute to a global strategy for a lasting peace in the Middle East. In that context, EU leaders are likely to discuss preparations under way aimed at guaranteeing the freedom of navigation in the Strait, and consider a possible reinforcement of the mandate of the EU maritime defensive operation, EUNAVFOR ASPIDES.

The European Council will also discuss the situation in Gaza and the West Bank. On Gaza, they may touch upon the preparation of restrictive measures against Israelis due to the treatment of activists who were bringing aid to Gaza. A number of Member States have increasingly become critical of Israel following the interception of the Global Sumud Flotilla in international waters and the mistreatment of those on board, who included a number of EU citizens. As a result of the incident, Italy, which has previously blocked attempts to suspend the EU-Israel Association Agreement, called for sanctions against the Israeli Minister of National Security, Ben-Gvir. However, it remains unlikely that EU leaders will reach a unanimous agreement on calling for sanctions against a sitting Israeli Minister ahead of upcoming Israeli elections. Additionally, in the context of the EU leaders’ reiterated condemnation of unilateral Israeli action aimed at further expanding illegal settlements, the concerns expressed by several Member States regarding products from illegal Israeli settlements entering the European market may also be raised.

Next multiannual financial framework

Following a first discussion in April 2026, EU leaders will hold an exchange of views on the 2028-2034 MFF based on a new negotiating box with figures drawn up by the current Cyprus Council Presidency.

On the MFF, the dividing lines in the European Council are normally between the net contributors and the net beneficiaries.[1]The former group includes Denmark, Germany, France, Austria, the Netherlands, Finland and Sweden; some of these Member States are known as the ‘frugals‘. The net beneficiaries meet under the name ‘friends of cohesion’ and include Bulgaria, Czechia, Estonia, Greece, Spain, Croatia, Italy,[2] Latvia, Lithuania, Hungary, Malta, Poland, Portugal, Romania, Slovenia and Slovakia.These two groups meet separately ahead of meetings in the Council, and sometimes the European Council, to coordinate their positions before the main meeting. Cyprus, as the current Council Presidency, and Ireland, which will take over on 1 July, do not formally attend these meetings, in order to remain ‘an honest broker’.

As in negotiations for previous MFFs, the usual dividing lines concern i) the size of the EU budget, ii) the balance between policy areas, iii) the existence and size of rebates, and iv) new own resources. An additional topic is the pace of repayment of the joint debt resulting from the EU recovery plan (i.e. Next Generation EU).

Regarding the size of the EU budget, the European Commission proposed a long-term budget of €1.789 trillion (in commitments over seven years in constant 2025 prices). While the European Parliament suggested in its interim report of 28 April 2026 a nominal increase of €175.11 billion (2025 constant prices) to this proposal, the frugal Member States have demanded to reduce the spending proposed by the Commission. The new negotiating box of the Cyprus Council Presidency, which only suggests an overall reduction of around 2 % of the original Commission MFF proposal, has received substantial criticism by the frugal Member States, the latter even expressing doubt over the Cyprus Presidency’s capacity to act as a ‘true honest broker’.

As regards the balance between policy areas, the friends of cohesion have, in a joint declaration of 25 May 2026, argued that the next MFF needed to provide sufficient resources for the cohesion policy, common agricultural policy and common fisheries policy. While some net contributors like Denmark, Germany, the Netherlands, Austria and Sweden have rejected this proposal, others such as France and Ireland were less opposed. In Chancellor Merz’s view, EU spending must be modernised to focus on investment in defence and competitiveness, with cuts to traditional farming and regional subsidies.

On the third point, the budget correction mechanisms – or ‘rebates’ – have been used in the EU’s long-term budget since the 1980s to compensate certain Member States for their financial contributions to the long-term EU budget. The suggestion to abolish these rebates has been put forward in several previous MFF negotiation rounds but has never been followed up on. In their joint declaration, the friends of cohesion have also called for the abolition of rebates, arguing that ‘there is no political or economic rationale for re-introducing them’.

Finally, on new own resources, the Commission submitted a proposal on 16 July 2025 suggesting new own resources on i) a corporate resource for Europe; ii) a tobacco excise duty own resource; iii) a share of the proceeds of the emissions trading system; iv) the carbon border adjustment mechanism; and v) a contribution on non-collected e-waste. At a discussion of EU finance ministers in October 2025, Ireland, Hungary, Finland and Sweden rejected outright any introduction of new own resources, while others such as Czechia and Poland criticised specific new own resources. In April 2026, the European Parliament put forward proposals on future own resources, suggesting to tax digital services, online gambling and crypto-assets. After the April 2026 informal meeting of EU leaders, President Costa signalled openness to considering the suggestions of Parliament, even if concerns have subsequently been expressed over their technical feasibility.

Closely related to discussions on the revenue side of the MFF are ideas put forward by President Macron and Greek Prime Minister Kyriakos Mitsotakis in favour of new common borrowing and a rollover of the pandemic debt to finance the bloc’s shared priorities.

No decisions are expected at this European Council meeting; President Costa’s objective is to give further guidance to the incoming Irish Council Presidency as to the type of new own resources on which a compromise could be achievable. While President Costa has insisted on EU leaders agreeing by the end of 2026 – a timeline expected to be reflected in the conclusions – many Member States have expressed doubts over the feasibility of this timetable.

Global economic challenges

In an extremely challenging geoeconomic environment, EU leaders will hold a strategic debate over dinner on the global macroeconomic imbalances and their impact on EU competitiveness. Previously, in December 2025, they held a similar discussion on ‘Geoeconomy and competitiveness’. However, in six months, the global environment has altered significantly; as President Costa underlined, the discussion will thus aim to ‘develop a common understanding of the challenges and to provide guidance to the Commission on the way forward’. On the one hand, EU leaders will look at ways of strengthening the EU’s strategic autonomy and competitiveness, but at the same time emphasise that fair competition at global level needs to be guaranteed.

In that context, without explicitly mentioning the country, Costa may intend to raise the issue of trade relations with China. Ahead of the European Council meeting, the EU foreign ministers discussed the topic in their meeting on 15 June, while ‘global imbalances’ are also likely to feature on the agenda of the G7 meeting in Evian, France on 15-17 June. The EU has defined China as a partner, a competitor and a systemic rival. China is the EU’s third largest trading partner in goods and services after the US and UK, and the EU and China together account for 29.6 % of global trade. There is a long-standing trade deficit between the EU and China; most recently, the EU has been worried about a possible ‘China Shock 2.0‘, i.e. the large influx of state-subsidised exports of Chinese products such as electric vehicles, batteries and solar panels, as well as steel and chemicals. In March, five EU Member States (France, Italy, Spain, the Netherlands and Lithuania) wrote a joint non-paper calling for tougher measures to counter abusive trade practises, without explicitly mentioning China.

Before dinner, EU leaders are expected to review progress made with the ‘One Europe, One Market’ agenda and the related roadmap, signed on the sidelines of the informal meeting in Cyprus in April. Thus, they will take stock of action aimed at strengthening the single market, enabling Europe’s industrial renewal, simplifying rules, reducing dependencies and encouraging innovation and investment. In the context of ongoing wars in Iran and Ukraine, which have disrupted global supply chains and fundamentally reshaped the EU energy markets, EU leaders envisaged in their March conclusions to return to the issues of affordable energy prices and the Energy Union 2030. They will probably review progress in ‘achieving Europe’s strategic autonomy, strengthening resilience, structurally lowering energy prices, and delivering the clean, abundant and home-grown energy needed to power the economy of the future’.

Although not officially on the agenda, the latest AI models and the challenges they may pose to EU citizens, companies and critical infrastructure may be discussed on the sidelines. US company Anthropic announced in April that it had built a new model, Claude Mythos, which was too powerful to be released to the public due to its extraordinary ability to identify security vulnerabilities in critical software, such as financial and healthcare systems and electricity networks. As a follow-up, the company created Project Glasswing with the aim of securing the most critical software by initially giving some 50 organisations access to the model so that they could identify and fix security problems. The European Commission has been in talks with the company to secure access to EU actors, and especially European banks have been vocal about the topic. On 2 June, the access was expanded to 150 new organisations, including the EU cybersecurity agency ENISA. However, on 12 June, the US administration ordered Anthropic to suspend access to Mythos 5 and Fable 5 models from all foreign nationals, citing national security concerns. This led to Anthropic shutting access to these two models from all customers. Following these developments, there were increasing calls in the EU to speed up the work on technology sovereignty.

European defence and security

Considering ‘Russia’s increasingly reckless and irresponsible behaviour towards EU Member States’, stressed by Costa in his letter to EU leaders, the latter may condemn Russia’s numerous violations of European airspace recently, such as in Romania and Latvia. They are also likely to reiterate the importance of the EU defence readiness agenda, in particular efforts to increase air defence and drone capacity. In that context, EU leaders could welcome the work in the Council on the action plan on drone and counter-drone security.

According to the defence readiness roadmap, the Commission, in cooperation with the lead nations of the capability coalitions, should expand the strategic dialogue with industry, host the first annual Defence Industrial Summit and present an overview of the industrial capacity ramp-up needed to ensure reliable supply for the agreed capability areas by mid-2026. As projects were to be launched in all priority areas within the first half of 2026, EU leaders may evaluate the progress made on these and all other aspects relevant to the defence readiness agenda.

EU leaders may call on the Parliament and Council to make further progress on creating a military mobility area, the AGILE proposal (which seeks to enhance the EU’s capacity to deliver defence innovation more rapidly and effectively), and the defence readiness omnibus.

Migration

Migration has been discussed at every European Council meeting in this institutional cycle, apart from the special European Council on defence in March 2025. EU leaders will again take stock of progress in the implementation of its previous conclusions on migration – this just a few days after the entry into force of the EU migration pact on 12 June. Likewise, EU leaders might welcome the recent provisional agreement of Parliament and Council on changes to EU policy on the return of non-EU nationals staying illegally in the EU.

Fight against illicit drugs

For the first time, the European Council will address challenges linked to the use and trafficking of drugs. While this topic was not mentioned in the European Council’s Strategic Agenda 2024-2029, it features in the European Commission’s political guidelines. EU leaders are expected to provide guidance for the implementation of the EU drugs strategy and the related EU action plan proposed in December 2025 to respond to the growing health, security and societal challenges posed by drug use and trafficking.The EU drugs strategy is based on five pillars: (1) enhancing preparedness and response; (2) protecting public health; (3) improving security and protecting society; (4) addressing risks and harms; and (5) building strong partnerships. On 5 June 2026, Justice and Home Affairs Ministers endorsed the EU drugs strategy and the action plan, adopting conclusions on jointly operationalising them to deliver on the key priorities aimed at reducing drug use and drug-related harm.

European Semester

As is usual at the June European Council meeting, EU leaders will discuss the country-specific recommendations to allow the conclusion of the European Semester cycle. Published on 3 June, the European Semester spring package includes tailored recommendations to each Member State to improve their economic performance. The Council will proceed to the formal adoption of these recommendations after the European Council has discussed them.

Notes

[1] Net contributors to the EU budget are considered to be the Member States who contribute more to the EU budget than the amount of EU funding they receive, and vice versa for net beneficiaries.

[2] While Italy is a net contributing country, it is part of the friends of cohesion.

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Read the complete briefing on ‘Outlook for the European Council, 18-19 June‘ in the Think Tank pages of the European Parliament.

Written by Anja Radjenovic.

CONTEXT

According to Directive 2008/115/EC, third-country nationals staying illegally on the territory of a European Union (EU) Member State should, as a general rule, be issued a return decision obliging them to leave the EU. However, available data suggest that, among those who receive such a decision, only about a quarter actually leave the EU. The limited effectiveness of the return policy is due to several challenges that the EU and Member States face when carrying out return procedures, including difficulties related to implementation at national level. To increase the effectiveness of the EU return policy, the European Commission announced in its 2025 work programme that it would develop a new common approach to returns, including a new legislative proposal on the subject.

Legislative proposal

2025/0059(COD) – Proposal for a Regulation of the European Parliament and of the Council establishing a common system for the return of third-country nationals staying illegally in the Union, and repealing Directive 2008/115/EC of the European Parliament and the Council, Council Directive 2001/40/EC and Council Decision 2004/191/EC – COM(2025) 101, 11.3.2025.

NEXT STEPS IN THE EUROPEAN PARLIAMENT

For the latest developments in this legislative procedure, see the Legislative Train Schedule: 2025/0059(COD)

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Read the complete briefing on ‘A common system for the return of third-country nationals staying illegally in the European Union‘ in the Think Tank pages of the European Parliament.

State and local plans for Election Day include how to react to potential ICE raids, misbehavior by federal election monitors and attempts to seize votes or machines.

© John Locher/Associated Press

 

On October 23, in the case of Newsom v. Trump, the US Court of Appeals for the Ninth Circuit ruled Donald Trump's June 2025 federalization of the National Guard in Los Angeles was likely illegal. This decision has little immediate effect, because the National Guard deployment ended months ago, after the Supreme Court ruled against Trump in a related Illinois case. But it has important implications for judicial review of executive invocation of emergency powers to use the military domestically. Among other things, it emphasizes that such actions are reviewable, and the president should get only limited deference. It also adopts a properly restrictive definition of "rebellion" (which is one of the conditions that might justify federalization of the National Guard).

Trump federalized the Guard in response to anti-ICE protests. The district court ruled his action was illegal and issued an injunction blocking it. But the Ninth Circuit lifted the preliminary injunction, in a decision I criticized at the time.

The relevant statute 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

Last year, the Ninth Circuit ruled (incorrectly, I think) that Trump's action might have been permissible under Subsection 3: a situation where "the President is unable with the regular forces to execute the laws of the United States." As the Ninth Circuit acknowledges in their most recent decision, this basis for Trump's actions was undermined by the Supreme Court's December ruling in the related case of Trump v. Illinois, which held that Subsection 3 can only be invoked when the president is authorized to use regular federal military forces to enforce the law, and those forces are inadequate. These circumstances do not apply to the anti-ICE protests in Los Angeles and Chicago.

No one claims that the situation in Los Angeles amounted to an "invasion" by a "foreign nation." Thus, in its most recent decision the Ninth Circuit considered whether Trump's actions were authorized by Subsection 2, which allows federalization of the guard when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States."

The majority opinion by Judge Jennifer Sung holds that the determination that there is a "rebellion" is subject to judicial review and can be invalidated " if it "did not reflect a colorable assessment within a range of honest judgment." I think this is overly deferential. For reasons I outlined in an article published last year, there should be little or no deference when the executive invokes extraordinary emergency powers. Still, the Ninth Circuit standard is far from a blank check, and does allow invalidation of executive actions where the claim of rebellion is blatantly wrong - as it was here.

Following the district court, the Ninth Circuit defined  "rebellion" as "a violent, armed, organized, open and avowed uprising against the government as a whole." This differentiates "rebellion" from smaller-scale violence or other violations of law. I think that definition is largely correct. The court summarizes a wide range of historical evidence supporting it.

The Ninth Circuit also concluded that events in Los Angeles did not even come close to meeting that standard. There were some violations of law by protestors, and some small-scale violence. But no systematic effort to overthrow the government or anything close to it. If anything, both this issue and the definition of "rebellion" are easier calls than the court suggests.

Judge Sung, author of the majority opinion, is a liberal Biden appointee. But her opinion was joined by Judge Eric Miller, a conservative Trump appointee and onetime clerk for Supreme Court Justice Clarence Thomas. This suggests the issue here cuts across ideological and jurisprudential lines. Judge Mark Bennett, another Trump appointee, dissented, but mostly on procedural grounds.

Judge Bennett did also take issue with the majority's conclusion that if Trump's federalization of the National Guard exceeded his statutory authority, it also violated the Tenth Amendment, which reserves to the states or to "the people," those "powers not delegated to the United States by the Constitution." He argues that the power to call forth the National Guard is delegated to Congress by the Calling Forth Clause of the Constitution, which gives Congress power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." This is true enough. But in situations where Congress has not exercised that authority, states retain total control over their militia (of which the National Guard is the principal modern example), and that control is protected by the Tenth Amendment. Indeed, such control over state military forces is a central element of state sovereignty. Overriding it without proper constitutional authority qualifies as unconstitutional "commandeering" of state government forces. As the majority explains:

The federal government—whether the President or Congress—violates the Tenth Amendment by commandeering state personnel to enforce or administer federal law. Printz v. United States, 521 U.S. 898, 925 (1997) (Under the Tenth Amendment, "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."). If, for example, the President commandeered state police to help federal officers enforce federal immigration laws, that would violate the Tenth Amendment….

California National Guard members are state personnel, unless properly federalized… The President purported to convert the Guard into federal personnel by issuing federalization orders. If those federalization orders had been valid, then the President would have deployed federal officers in Los Angeles, and no commandeering of state personnel would have occurred. But because the President lacked authority to federalize the California National Guard, the federalization orders were invalid, and the deployed Guard members remained state personnel….

In other words, because the deployed members of the California National Guard were not properly federalized, they remained the legal equivalent (for Tenth Amendment purposes) of the state police. And because the challenged executive orders compelled those state officers to help federal officers enforce federal law, the orders violated the Tenth Amendment….

The Tenth Amendment protects States against overreach by the "Federal Government," whether "by legislation or executive action." Printz, 521 U.S. at 925, 935. The President cannot command state officials to enforce federal law even if a federal statute would authorize him, under some other circumstances, to call those officials into federal service. If the statute did not authorize the President to federalize the California Guard members here…, then the federalization orders were invalid, the Guard members remained state personnel, and Defendants violated the Tenth Amendment by commandeering those state personnel to administer federal immigration laws.

Exactly so. The majority and dissent  consider a number of procedural issues, which I will not try to address. The majority also parses a variety of relevant precedents in detail. I may have more to say about some of them in future writings.

For the moment, this decision has little immediate effect. But it sets an important precedent in favor of judicial review of executive invocation of emergency powers, and on the meaning of "rebellion."

The post Ninth Circuit Rules Trump Illegally Federalized National Guard in Los Angeles appeared first on Reason Magazine.