By MIKHAIL ZINSHTEYN
President Donald Trump can continue to control the National Guard in California for the time being after a panel of judges from the 9th Circuit Court of Appeals determined he followed the law in deploying troops to Los Angeles. The order, handed down Thursday evening, is the latest in a fast-moving legal saga playing out over Trump’s decision to call up the National Guard and U.S. Marines to the Los Angeles area in response to protests after federal immigration law enforcement agents began worksite raids and arrests two weeks ago. California’s Democratic leadership, led by Gov. Gavin Newsom, has called the deployment unnecessary and illegal. The appeals court order in a lawsuit filed by Newsom contesting the deployment isn’t surprising; the panel signaled an openness to the Trump administration’s legal arguments during a legal hearing on Tuesday.
In court earlier this week, attorneys from the Trump administration argued the president’s deployment was “unreviewable” by courts.
The appeals court judges disagreed that the decision was beyond the reach of the judicial branch, but found the president had a legitimate interest in protecting federal employees when he called up the troops.
“The undisputed facts demonstrate that before the deployment of the National Guard, protesters ‘pinned down’ several federal officers and threw ‘concrete chunks, bottles of liquid and other objects’ at the officers.” Two of those judges were appointed by President Trump in his previous term.
Trump deployed the troops through a presidential memo on June 7 and cited a rarely used federal statute permitting a president to deploy the National Guard in times of invasion, domestic rebellion or the inability for the federal government to carry out its laws. Trump’s order was for 60 days and technically applied to all of the state Nation Guards in the U.S.
Los Angeles Mayor Karen Bass imposed a weeklong curfew in the city’s downtown after Trump’s deployment. She and other California leaders have maintained that local law enforcement agencies were more than capable of addressing the unrest that followed high-profile immigration sweeps earlier this month.
Trump’s order marked the first time since 1965 that a president deployed the National Guard against the wishes of a state’s governor. A group of former service secretaries and four star military commanders wrote an amicus brief supporting Newsom’s lawsuit challenging the deployment.
“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,” Gov. Newsom said in a written statement after the 9th Circuit released its ruling. “The president is not a king and is not above the law. We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens.”
Trump praised the court’s decision in a social media post last night and hinted that he may consider federalizing state National Guard troops in the future.
“This is much bigger than Gavin (Newsom),” Trump wrote. “All over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable (sic).”
What happens next could take one of several turns. On Friday a lower court judge, Charles Breyer, will hold a hearing on whether to return the troops to Newsom through a preliminary injunction. Breyer last week issued an order that would have temporarily halted Trump’s deployment, but the 9th Circuit blocked it. Now, the battle over whether federal troops can remain in Los Angeles is operating on three parallel tracks — the case the 9th Circuit decided today, which can be appealed; Friday’s hearing on the preliminary injunction; and the full merits of the case that would be argued through a prolonged trial.
For Newsom’s legal team to prevail in Friday’s hearing, they’ll have to clear a higher threshold of scrutiny than they did when they initially won back the National Guard last week, albeit for a few hours. That’s because anyone seeking a preliminary injunction must demonstrate that the merits of their arguments will likely prevail in the full trial.
The appeals court’s decision could influence Breyer’s thinking, legal thinkers said, even if he initially signalled support for the Newsom administration’s arguments.
“It’s kind of hard to disentangle the two processes when we think about how judge Breyer will be weighing” the preliminary injunction hearing, because a lot of that’s going to be informed by what these higher level courts decide,” said Christopher Mirasola, an assistant law professor at the University of Houston Law Center.
No matter what Breyer does after Friday, it’ll likely quickly go back to the appeals court. And if the appeals court keeps halting the lower court’s orders, Trump keeps the National Guard for the duration of the lower court’s full trial.
Would the Newsom team try to appeal the injunction with the Supreme Court?
On one hand, “why not shoot your shot when you got the opportunity, right?” asked Mirasola rhetorically. But there’s a chance the high court comes back with such a strong opinion favoring the Trump administration that it could “substantively affect how judge Breyer treats the merits of the case.”
