In the high-stakes legal showdown between California Gov. Gavin Newsom and President Donald Trump over Trump’s deployment of the National Guard in Los Angeles, a U.S. government lawyer argued Tuesday that judges have no power to stop a president from deploying such troops.
The president has sole discretion in deploying the Guard under a federal law related to invasion or danger of invasion by a foreign country, or rebellion or danger of rebellion from within, attorney Brett Shumate told a three-judge panel in a remote hearing by the 9th Circuit Court of Appeal.
“Local authorities are either unable or unwilling to protect federal personnel and property from the mob violence ongoing in Los Angeles today,” Shumate said. “The President acted well within his discretion in calling up the Guard based on his determination that the violent riots in Los Angeles constitute a rebellion against the authority of the United States that rendered him unable to execute federal laws.”
A lawyer for Newsom and California disputed the claim that local authorities could not or would not respond effectively to the protests. Attorney Sam Harbourt said thousands of state and local police had been sent in, and had made some 1,000 arrests, with local leaders imposing night-time curfews.
The trio of judges questioned both sides in detail, but did not make an immediate decision on whether 4,000 Guard troops that arrived in LA earlier this month would remain under Trump’s control.
“Is it the United States’ position that the court has no role at all in reviewing what the President has done?” Judge Mark Bennett asked Shumate.
“There’s no role for the court to play in reviewing that decision,” Shumate replied.
Trump’s order was intended to defend federal property from protesters and protect federal law enforcement officers from mobs seeking to stop them from carrying out their duties, Shumate said.
Early last week, amid largely peaceful, occasionally violent protests in Los Angeles against the Trump administration’s immigration sweeps and deportations, Trump took control of the California National Guard over Newsom’s opposition.
Newsom and the State of California sued Trump and his administration on June 9 in San Francisco’s U.S. District Court over the deployment order. Newsom in a news release accused Trump of “outrageous overreach” and described the deployment as “an unmistakable step toward authoritarianism.”
U.S. District Judge Charles Breyer on June 12 ruled Trump acted illegally and violated the Constitution’s Tenth Amendment restricting federal government powers, and ordered the soldiers temporarily returned to Newsom’s control. The White House immediately appealed. Later Thursday, the Ninth Circuit temporarily returned control of the National Guard to Trump.
In a social media post June 13 about the Ninth Circuit’s decision, Trump wrote, “If I didn’t send the Military into Los Angeles, that city would be burning to the ground right now. We saved L.A. Thank you for the Decision!!!”
At this point, Trump has commandeered a third of available Guard soldiers for his “unlawful mission,” hampering California’s ability to use the troops in their important roles to fight wildfires and combat illegal drugs, Harbourt, the state’s attorney, said.
Trump’s order was “staggeringly broad in scope” and harmful to America’s democratic tradition of separation of the military from civilian affairs, Harbourt contended.
“The president’s order is not limited to Los Angeles or even California,” Harbourt said. “It’s not limited in the number of troops. It’s not limited in the duration that those troops that can be called up for. There is no real limit imposed on the scope of the mission. It sets a sets a precedent for this president and future presidents to take similar actions going forward.”
Related Articles
Letters: Coverage of ‘No Kings’ rallies sold magnitude short
Trump administration, California head to court over National Guard use today. Watch the hearing here
OpenAI snags $200 million contract with US Defense Department
Silicon Valley-based air taxi firm Archer sees more defense demand in near term
Can President Trump take over the California National Guard? Appeals court takes up battle next
Stanford Law professor Robert Weisberg said the claim that Trump’s order was beyond the review of the courts “absurd.” Trump’s control of the Guard troops will likely come down to judges’ interpretation of the federal law cited by the Shumate, or possibly the federal Insurrection Act, if Trump invokes it.
Zachary Price, a professor at UC Law San Francisco, noted the “irony” behind the Trump administration’s claim that the protests amounted to a rebellion, given the debate over whether the January 6 attack on the U.S. Capitol was an insurrection. Price said he was skeptical that the law on presidential response to invasion or rebellion applied to the deployment of the Guard.
The legal battle highlights the limitations on presidential power imposed by Congress through the funding it provides to federal agencies, Price said. “In some ways, this is an effort to get around those limits by bringing in military forces essentially to back up immigration law enforcement,” Price said. “It’s consequential if presidents can find a way to kind of beef up enforcement of certain laws beyond what Congress had expected in providing resources for, say, the Department of Homeland Society.”
Two of the three judges, Bennett and Eric Miller, were appointed by Trump in his first term, while the third, Jennifer Sung, was appointed by former President Joe Biden.
Legal experts said the panel’s composition does not mean it would favor Trump.
“I think we’ve seen a fair number of conservative judges around the country, including Trump appointees, who have been willing to overrule Trump,” Weisberg, the Stanford professor, said.
Weisberg said he expected the 9th Circuit trio to rule on the matter in the next couple of days. The losing side could ask for a rehearing, or appeal to the U.S. Supreme Court.
Meanwhile, Adarene Hoag, a leader for the group By Any Means Necessary who protested against Trump outside the federal courthouse in San Francisco, said if the judges rule in the president’s favor, the anti-Trump movement that gathered force in this past weekend’s “No Kings” protests “will continue to be the check on Trump’s power.”