Department of Justice lawyers representing the Trump administration returned to court today to repeat their maximalist argument that the president has the authority to commandeer state National Guards troops and that judges have no authority to second guess him.
A three-judge panel of the 9th Circuit Court of Appeals seemed at least open to that argument in a remote video hearing today, unlike a lower court judge who ruled against the administration last week.
The arguments played out as Los Angeles Mayor Karen Bass ended a curfew that she imposed after President Trump sent the National Guard and U.S. Marines to the city in response to immigration protests. California’s Democratic leadership, led by Gov. Gavin Newsom, has called the deployment unnecessary.
In the legal showdown over Trump’s order, a 9th Circuit judge asked if a president calls in the National Guard over street protests by invoking a rarely used early 20th century law, can a court even challenge that decision?
No, argued a lawyer for the Trump administration.
And what if a president citing that law “gives no reasons for doing it, provides no support for doing it”? A Trump-appointed judge on the panel, Mark Bennett, asked the lawyer.
“If the statute is unreviewable, it's unreviewable,” said Brett Shumate, an assistant attorney general in the U.S. Department of Justice. “There's no rule for the court to play in reviewing that decision,” said Shumate moments earlier.
Joseph Nunn, a national security lawyer with the liberal-leaning Brennan Center for Justice, called the argument advanced by the federal government “astonishing” and “extraordinarily broad.”
The Trump administration’s insistence that “this statute grants the president the sole and unreviewable discretion to — at any moment, at any place, for any reason or for no reason at all — federalize any state or every state’s national guard…is fundamentally not how we do things in the United States,” he said.
Nunn stressed that he could not predict how the panel of appellate judges might rule based on the questions they asked at today’s hearing. But the fact that so much time was spent on the court’s review powers suggests that the judges were keenly aware of the stakes.
The judges “gave the federal government at least half a dozen opportunities to at least slightly temper this extraordinarily broad argument and the federal government turned down every one of those opportunities,” said Nunn.
Case likely bound for Supreme Court
The narrow focus of the hearing — and the expected order from the judges sometime this week — has massive immediate implications for California: Can the National Guard temporarily remain in L.A. under Trump while the full case plays out?
But any decision this week may likely be appealed to a larger panel of judges on the 9th Circuit, or travel up to the U.S. Supreme Court. A lawyer for the federal government signalled just that today when he asked the panel to permit an emergency appeal to the high court if the judges don’t continue to give Trump control of the National Guard.
The question before the judges today was whether Trump can keep the National Guard while the full trial in the lower court plays out. That means this dispute between Trump and Newsom could operate on multiple parallel tracks until a final decision, by some court, is made.
Case in point: Judge Charles Breyer, the lower court judge who initially sided with Newsom’s lawyers, is expected to hold a hearing on whether to place a preliminary injunction — a longer term hold on Trump’s deployment of military personnel, including the Guard, to Los Angeles — on Friday. For Newsom’s legal team to prevail in that hearing, they’ll have to clear a higher threshold of scrutiny. That’s because anyone seeking a preliminary injunction must demonstrate that the merits of their arguments will likely prevail in the full trial.
Today’s arguments ran heavy on thorny textual analysis and demonstrated a tack by the judges to poke holes in the arguments of both legal teams without revealing how they’d rule.
As with the lower court last week, U.S. Department of Justice lawyer Shumate redeployed a two-part argument: First, the administration complied with the federal law that gives the president the authority to commandeer state national guards in cases of invasion, ongoing or the danger of rebellion or a situation in which he is “unable with the regular forces to execute the laws of the United States.”
But second, even if the president didn’t comply with that law, the administration argued, courts have no constitutional authority to second-guess that decision anyway.
Beyond the abstract legal arguments, both sides pointed to dire consequences should today’s hearing not go their way. Shumate argued that stripping control of the Guard from the president would be “putting lives at risk and property at risk as well.”
California, through state attorney Samuel Harbourt, said that Trump’s unnecessary federalization of the guard diverts them from other pressing matters, including standing by to combat wildfires. Already one-third of the state’s National Guard are in Los Angeles, straining their ability to respond to other crises, he argued.
Beyond that, the president's action “is causing harm to our nation's broader democratic tradition of separation of the military from civilian affairs,” he said.
Eight former secretaries of the U.S. Army and Navy and retired four-star admirals and generals backed the Newsom administration. They wrote to the judges that the federal troops “are not trained or qualified to conduct domestic law enforcement operations.” They added that using troops as law enforcement “should be a last resort to avoid the politicization of the military, which inevitably erodes public trust, impacts recruitment, and undermines troop morale.”
Are the LA protests a 'rebellion'?
But while the hearings this week and last occurred before different judges in different courts, the arguments were similar.
Trump’s team says there’s rebellion in the streets. Newsom’s team says local police can handle protesters and that sending in federal forces further inflames tensions.
The tenor of the legal arguments were fierce, mirroring the growing intensity in the quickly devolving relations between Trump and Newsom.
Last week, Newsom likened Trump to “failed dictators.” Trump’s legal team’s arguments “are terrifying,” Newsom’s team wrote to the panel of judges overseeing the hearing today.
On Sunday, Trump denounced “radical left Democrats” as “sick of mind” who “hate our country” on social media. "We must expand efforts to detain and deport Illegal Aliens in America's largest Cities, such as Los Angeles, Chicago, and New York, where Millions upon Millions of Illegal Aliens reside," he declared.
Despite that heated rhetoric, Trump hasn’t invoked the full suite of his legal powers to send in the military to California. That would mean triggering the Insurrection Act, which would permit the armed forces to act as law enforcement. Presently, the National Guard is only supposed to protect federal property and officers.
Trump used obscure law in calling up troops
The White House legal team has also argued that contrary to what Newsom’s team says, a president under this federal law doesn’t need the formal approval of a state governor to call up the National Guard.
The law that the president evoked was penned by Congress in the first decade of the 20th century. In an especially fuzzy bit of language tacked on via amendment in 1908, the law specifies that the president’s federalization orders “shall be issued through the governors.”
What “through” means in this context has been the subject of extensive and agonizingly detailed debate throughout these legal proceedings.
“It's a very weird statute and it's poorly drafted,” said Nunn. “It’s not Congress’ best work.”
Lawyers from the California’s Department of Justice who are representing Newsom argue that only once before has a president invoked this law to call up the National Guard; President Richard Nixon did so in 1970 to deliver the mail during a U.S. Postal Service strike.
The National Guard in the Nixon era stepped in to effectively replace the 200,000 workers who were withholding their labor. But in Los Angeles, thousands of law enforcement from local and county agencies patrolled the streets during the protests and arrested hundreds of people, Newsom’s lawyers wrote. There’s no shortage of law enforcement to quell the pockets of unrest in Los Angeles, they wrote.
According to a Trump filing, “the crowd of protestors outside the federal building on June 6 that prompted the initial federalization order …had fully dispersed within about four hours of LAPD’s arrival,” Newsom’s legal team wrote in a filing Sunday.
“As the district court found based on the record evidence, the circumstances here do not remotely amount to a ‘rebellion or danger of a rebellion,’” Newsom’s legal team wrote.
This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.
