Ninth Circuit Court Panel Hears Arguments Over Trump’s Control Of California National Guard

A panel of three judges on the San Francisco-based United States Court of Appeals for the Ninth Circuit heard arguments today from both sides over whether or not President Donald Trump has the authority to activate the California National Guard and deploy them in Los Angeles last week to help quell the anti-ICE protests and riots.

A three judge panel consisting of two Trump-nominated judges, Mark Bennett and Eric Miller, and Biden-appointed Judge Jennifer Sung heard arguments in Newsom v. Trump, with the judges surprising many by heavily questioning Governor Gavin Newsom’s claim that they have been activated illegally without his permission. In particular, the judges cited Martin v. Mott, an 1827 Supreme Court case, which found that the President has the power to declare exigencies and activate state militias for federal service.

Lawyers for Trump went a step further and said that the court has no real say in the matter, as the law clearly gave the president this power.

“Is it the United States’ position that the court has no role at all in reviewing what the president has done in calling forth the militia?” asked Judge Bennett at one point.

“Yes,” responded Assistant Attorney General Brett Shumate. “The law giving the president this power is ‘unreviewable.’ The court should immediately stay the District Court’s extraordinary order, because it interferes with the president’s commander-in-chief powers based on an erroneous interpretation of the applicable statute. It upends the military chain of command. It gives state governors veto power over the president’s military orders. It puts federal judges on a collision course with the commander-in-chief. And it endangers lives.”

When California Supervising Deputy Solicitor General Sam Harbourt tried to argue around earlier precedent, all three judges, including the Biden-appointed Sung, swiftly retorted back.

“If we were writing on a blank slate, I would tend to agree with you,” explained Sung to Harbourt. “However, Martin v. Mott seemingly rejected the exact argument that you’re making.”

Later Harbourt tried again.

“Don’t embrace this highly deferential, essentially unchecked view of authority,” argued Harbourt. “We don’t have a problem with according the president some level of appropriate deference based upon his experience implementing federal law. The problem as we see it is that there’s really nothing to defer to here, because defendants made no attempt whatsoever to provide argument or evidence that they even contemplated more modest measures to the extreme response of calling in the National Guard and militarizing the situation.”

However, once again, his argument was swatted down, with two of the judges even saying that Trump didn’t need Newsom’s permission to activate the National Guard.

“Where does the statute say that issuing it through the governor requires either the governor’s consent or requires consultation with the government?” asked Judge Bennett to the California team.

Instead of answering the question, they instead said that the order being sent to the General of the National Guard rather than the Governor “raised very serious constitutional questions and risked blurring the lines of political accountability.”

Questions over the need of the military in Los Angeles were also addressed, with federal lawyers arguing that they were needed to help quell the riots, while state lawyers said that local authorities were handling it just fine.

“It is of profound concern to the leaders of the state, but the state is dealing with it. Local law enforcement agencies are doing their job of dealing with it,” added Harbourt.”

The Appellate hearing

The court battle over President Trump activating 4,000 California National Guard troops to help quell the anti-ICE riots in Los Angeles, began last Monday when Governor Gavin Newsom, along with Attorney General Rob Bonta, announced that they were suing the Trump administration  over President Trump activating the National Guard without Newsom’s approval. As part of the filing, they also included a request for an emergency restraining order to stop troops from being active in Los Angeles as the case was to be decided.

“In the early hours of Sunday morning, the U.S. Department of Defense, at the direction of the President, redirected hundreds of National Guard troops from San Diego to Los Angeles, without authorization from the Governor and against the wishes of local law enforcement,” read the lawsuit notice. “In total, the Department intends to deploy 2,000 troops from across the state, an inflammatory escalation unsupported by conditions on the ground. In a lawsuit being filed today, Attorney General Bonta and Governor Newsom will ask the court to hold unlawful and set aside the President’s order federalizing the National Guard by way of a rarely used law, arguing that such action exceeds the federal government’s authority under the law and violates the Tenth Amendment.”

Newsom also added in the emergency request that it was needed to “prevent the use of federalized National Guard and active duty Marines for law enforcement purposes on the streets of a civilian city” and to “avoid irreparable harm to our communities and the rule of law that is likely to result from troops enforcing immigration laws.”

To the surprise of state officials, District Court Judge Charles Breyer denied the emergency restraining order request. However, only a day later, Breyer ruled that Trump did not issue his activation order through Newsom, with the riots not meeting the legal reasons for a President to use a state’s National Guard. Breyer’s ruling was set to free up the National Guard from federal control on June 13th. However, a Trump administration appeal to the Appellate court granted a stay at the eleventh hour, meaning that Trump could remain in control of the National Guard troops until the panel had a ruling on the matter.

This all led to the panel hearing on Tuesday. While no decision was made, many in the court agreed that it looked like the panel was siding with the Trump administration thanks to the heavy questioning of California state lawyers and the constant bringing up of the 1827 precedent case.  Late on Tuesday, it was even being reported that Newsom’s team was preparing an appeal to either a larger panel in the Appellate Court or to the U.S. Supreme Court.

While no ruling was given on Tuesday, it is expected that the court will give one soon, with the losing party likely to escalate the case to the next level.