Judges press lawyers for Trump, Newsom in case over Guard troops sent to LA
The high-stakes court battle between California and the Trump administration over the president’s decision to take over the state’s National Guard and send it to protests in Los Angeles and elsewhere continued on Wednesday, with oral arguments before a panel of federal appeals court judges.
The discussion before three judges of the 9th Circuit Court of Appeals centered on a lawsuit filed by Gov. Gavin Newsom in June over President Donald Trump’s decision to federalize the California National Guard over Newsom’s objections last June, amid protests against immigration sweeps being conducted in Los Angeles.
At issue was a lower court ruling saying Trump’s takeover of the California Guard was illegal based on laws regulating the president’s power to demand control over a state militia. Similar cases are playing out across the country, testing the limits of the president’s power to take over state militias and deploy the military on American streets.
The judges, who have already ruled in Trump’s favor twice during the progress of the same case, nonetheless appeared skeptical of the administration’s contention that courts to do not have the power to intervene when a president decides to commandeer a state’s Guard — or for how long.
Noting that protests have subsided considerably in the four months since immigration sweeps prompted violent demonstrations in L.A. last June, the panel of two Trump appointees and one Joe Biden appointee asked pointed questions of Deputy Assistant U.S. Attorney General Eric McArthur about whether the president could continue to use such troops long after the initial emergency without any interference from the courts.
“Would it be your view that no matter how much conditions on the ground change, there would be no ability of for example, the district court could review, say, in a month, six months, a year, five years, whether the conditions still support that the President was unable, with the regular forces to execute faithfully the laws of the United States?” asked Judge Mark Bennett, who was appointed by Trump in 2018.
McArthur replied that, yes, the administration agreed with that point of view, prompting Bennett to ask him whether George Washington could have retained control over local militias years after founding-era rebellions had ended.
“The only issue before this court is whether the president properly federalized the guard in the first place back in June,” McArthur replied.
To that question, Judge Eric Miller asked whether a comparatively small protest was enough to trigger a call-up of Guard troops. The law, he noted, allows the president to call up the Guard to quell a rebellion or repel a foreign invasion, or when the executive branch cannot enforce the laws with regular forces. But wouldn’t that mean that the inability to enforce the laws was in the context of a situation as serious as a rebellion or invasion, he asked?
“Why is a couple of hundred people engaging in disorderly conduct and throwing things that a building over the course of two days of comparable severity to an invasion or a rebellion?” asked Miller, who was appointed by Trump in 2019.
The judges also had sharp questions for California Solicitor General Samuel Harbourt, who represented Newsom.
If the state can argue that the Guard is no longer needed after it is called up by the president, what’s to stop states from marching into court every single day to demand a new consideration from judges, asked Bennett.
“Federalization cannot just be indefinite in duration,” argued Harbourt. “It’s designed to address extreme circumstances.”
The case is one of several before federal judges as Trump has attempted to send Guard troops to Los Angeles; Portland, Oregon; and Chicago, amid protests that have ranged in size and at times become violent. He sent troops to Washington, D.C. and has threatened to send them to San Francisco.
A different panel judges on the same appeals court gave Trump another victory on Monday, overturning a ruling barring the administration from sending the Oregon National Guard to Portland.
On Wednesday, the administration sent 100 immigration enforcement officers to the Bay Area, prompting Newsom to call for calm. He said Tuesday he would immediately sue if Trump sent troops to the city, where he was once mayor.
While federal law prevents the use of military troops to serve as domestic law enforcement officers, soldiers are allowed to protect federal buildings, property and personnel. Trump has said repeatedly he would use the military for law enforcement, but in court his lawyers have said that they are simply protecting federal property and personnel.
The three judges who heard oral arguments on Wednesday ruled twice in Trump’s favor on the question of whether he had acted appropriately in federalizing the California National Guard. However, both of those rulings were temporary, meant to last until the case played out.
A new ruling based on Wednesday’s arguments would either uphold or overturn U.S. District Judge Charles Breyer’s order declaring the Guard takeover illegal, but would still leave the panel with a 500-page request from Newsom asking them to revisit their earlier reasoning in light of Trump’s efforts to send the Guard to more and more cities.
The continued use of the Guard in this way, especially in situations where there are few if any protests going on currently, shows that Trump was not acting in good faith, Newsom said in his motion.
That motion was not formally before the panel on Wednesday, but the judges did discuss it, an indication that they might address it in their ruling.
They also discussed a more recent ruling by Breyer that declared the deployment to be a violation of the Posse Comitatus Act of 1873, which limits the use of the military for enforcing domestic laws. That ruling is on hold pending appeal.
