Ninth Circuit allows Trump to retain control of California National Guard
Candace Cheung
(CN) — A Ninth Circuit panel said late Thursday that President Donald Trump can continue "federalizing" the California National Guard while California Governor Gavin Newsom's lawsuit challenging if the president had the power to mobilize the troops against Los Angeles protests pends in federal court.
The panel — consisting of U.S. Circuit Judge Mark J. Bennett and U.S. Circuit Judge Eric D. Miller, both Trump appointees, and U.S. Circuit Judge Jennifer Sung, a Joe Biden appointee — had blocked a lower court's temporary restraining order on June 12, which had given control of the troops back to Newsom. This Thursday's order extends the emergency pause the president requested and blocks the restraining order.
In their unanimous, per curiam opinion, the panel noted that it disagreed with the federal government's argument that Trump's deployment decision was "unreviewable" but still determined that Trump was within his authority to send out the state National Guard.
“We are persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential. Affording the president that deference, we conclude that it is likely that the president lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when ‘the president is unable with the regular forces to execute the laws of the United States,’” the panel said.
The Trump administration has ordered as many as 4,000 California National Guard troops and 700 Marines into LA since protests erupted last week over U.S. Immigration and Customs Enforcement raids of downtown businesses and Home Depot parking lots, where day laborers gather to find work.
Newsom sued Trump in federal court on June 9 — just days after the protests began and the state National Guard was mobilized — arguing that Trump’s deployment of the troops violates the 10th Amendment and the Administrative Procedure Act by exceeding his constitutional authority.
Newsom says that federal law requires a governor’s consent before the president can mobilize a state’s National Guard for domestic law enforcement. Without immediate court intervention, he warned, the unauthorized use of troops would harm state sovereignty, inflame tensions and fuel unrest.
In a Tuesday hearing before the panel, Trump had reiterated claims that he followed federal rules that these orders "shall be issued through the governors of the states," stressing that the troops were ultimately federalized by the adjutant general, a senior member of the state National Guard, acting on Newsom's behalf.
Trump defended his decision by citing Title 10, Section 12406 of the U.S. Code, which allows federal use of state National Guard troops during a “danger of rebellion.” He argues in court filings that such actions aren’t subject to judicial review, saying federal law leaves those decisions to the president.
However, the panel focused on a separate provision of the statute Trump invoked to issue his June 7 memorandum that called in the Guard, in which the president is permitted to federalize state service members if they are unable to execute the laws of the U.S. with federal forces.
As that provision was enough for the panel to find the deployment constitutional, the panel declined to reach a conclusion based on the provision about “rebellions.”
“Under a highly deferential standard of review, defendants have presented facts to allow us to conclude that the president had a colorable basis for invoking § 12406(3). They presented evidence, detailed above, of protesters’ interference with the ability of federal officers to execute the laws,” the panel wrote.
The panel noted several instances where protesters had reportedly thrown objects at ICE vehicles. The state has charged several people with vandalism and looting. The government also charged a pair of protesters with possessing Molotov cocktails.
The panel took issue with the breadth of the temporary restraining order issued June 12 by U.S. District Judge Charles R. Breyer, a Bill Clinton appointee, which the panel quickly blocked the same day with its emergency stay.
“Even if defendants failed to comply with the statute’s procedural requirement, such failure would not justify the injunctive relief imposed by the district court,” the panel said. “The proper remedy would be injunctive relief tailored to defendants’ failure to issue the order through the governor — not an injunction prohibiting the president from exercising his lawful authority to call up the National Guard.”
The panel noted that it was not making any decisions on California’s claims under the Posse Comitatus Act, which blocks federal troops from participating in regular civilian law enforcement except when authorized, or the Administrative Procedure Act.
"Consequently, the parties’ disputes about how federal forces are being deployed are not before us,” the panel wrote.
In a Thursday statement, Newsom highlighted the panel's disagreement that the courts have no role in Trump's decisions.
"Donald Trump is not a king and not above the law. Tonight, the court rightly rejected Trump’s claim that he can do whatever he wants with the National Guard and not have to explain himself to a court. We will not let this authoritarian use of military soldiers against citizens go unchecked," the governor posted.