A federal appeals court in San Francisco heard arguments Tuesday on whether the Trump administration should return control of National Guard troops to California after they were deployed following protests in Los Angeles over immigration raids. The hearing comes after the 9th US Circuit Court of Appeals granted an administration request last week to temporarily pause a lower court order that directed President Donald Trump to return control of the soldiers to Democratic Governor Gavin Newsom, who filed suit over the deployment.
Judge Mark Bennett, a Trump appointee, opened the hearing by asking the federal government’s attorney, Brett Shumate, whether the Department of Justice’s position is that the courts have no role in reviewing the president’s decision to call the National Guard.
“No, there’s no role for the court to play in reviewing that decision,” Shumate responded. “The statute says the president may call on federal service members and units of the Guard of any state in such numbers that he considers necessary,” Shumate said, adding that the statute “couldn’t be any more clear.”
Shumate pointed out the ongoing protests in Los Angeles, where on Tuesday Mayor Karen Bass lifted a curfew for downtown Los Angeles, saying acts of vandalism and violence that prompted her curfew a week ago had subsided. He said the Guard is necessary to protect federal buildings from “ongoing protests” and Immigration and Customs Enforcement agents making arrests.
“It is essential that this injunction be stayed, otherwise, lives and property will be at risk,” Shumate said.
‘Extreme response’
California’s lawyer, Samuel Harbourt, argued that the federal government didn’t inform Newsom of the decision to deploy the Guard and that they haven’t shown that they contemplated “more modest measures to the extreme response of calling in the national guard and militarizing the situation.”
“There’s World A, where federal authorities like ICE officials are enforcing the law as they prefer, and then World B; they encounter any obstacle and then the president can immediately reach for the most extreme option on the table, which is federalizing the National Guard,” Harbourt added.
US District Judge Charles Breyer in San Francisco ruled last week that the Guard deployment was illegal and exceeded Trump’s authority. He granted Newsom a temporary restraining order to take control of the Guard while his lawsuit proceeds. It applied only to the National Guard troops and not the Marines, who were also deployed to LA.
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Harbourt told the panel that not upholding Breyer’s ruling would “defy our constitutional traditions of preserving state sovereignty, of providing judicial review for the legality of executive action, of safeguarding our cherished rights to political protest and of keeping the military.”
The Trump administration argued the deployment was necessary to restore order. At Tuesday’s hearing, the appeals panel appeared skeptical of the state’s arguments and seemed inclined to stay Breyer’s order.
Newsom’s lawsuit accused Trump of inflaming tensions, breaching state sovereignty and wasting resources just when guard members need to be preparing for wildfire season. He also called the federal takeover of the state’s National Guard “illegal and immoral.”
‘Common sense will prevail’
Newsom said ahead of the hearing that he was confident in the rule of law and encouraged by a federal judge’s order last week that Trump return control of the National Guard to California, before that ruling was halted.
“I’m confident that common sense will prevail here: The US military belongs on the battlefield, not on American streets,” Newsom said in a statement.
Breyer ruled the Trump violated the use of Title 10, which allows the president to call the National Guard into federal service when the country “is invaded,” when “there is a rebellion or danger of a rebellion against the authority of the Government,” or when the president is unable “to execute the laws of the United States.”
Breyer, an appointee of former President Bill Clinton, said the definition of a rebellion was not met. “The protests in Los Angeles fall far short of ‘rebellion,’” he wrote. “Individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone.”
The National Guard hasn’t been activated without a governor’s permission since 1965, when President Lyndon B. Johnson sent troops to protect a civil rights march in Alabama, according to the Brennan Center for Justice.
