A panel of appellate judges appeared doubtful on Tuesday that they could transfer power over California National Guard soldiers back to Gov. Gavin Newsom after President Donald Trump activated them in response to immigration protests in Los Angeles.
In a case that’s speeding its way through the nation’s court system, California’s Democratic governor argued that the president is escalating civil unrest while masked immigration agents conduct increasingly militarized deportation raids with armored vehicles.
Following Trump’s decision to activate the National Guard over Newsom’s complaints, a trial judge last week temporarily halted the federalization of state troops. But that ruling was immediately put on ice by the 9th Circuit Court of Appeals.
The three-judge panel that first heard arguments on Tuesday included two appointees from Trump’s first term and one from the Biden administration — but all of them expressed skepticism at their ability to rein in the White House as it deploys military personnel on American streets.
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Sam Harbourt, California’s supervising deputy solicitor general, was midway through arguing about how Trump’s aggressive power grab “would defy constitutional provision of ensuring state sovereignty” when he was interrupted by Judge Mark J. Bennett. And the questions kept coming from the other two judges, who wondered aloud whether an obscure, rarely invoked, 132-word law cited by Trump creates any kind of speed bump if a president wants to forcefully yank away control of a state’s National Guard soldiers.
Even Judge Jennifer Sung, the sole Biden appointee on the panel, asked if there’s anything that actually bars the president from making this decision.
At the center of this debate is a law that allows a president to tap a state’s troops with orders that “shall be issued through the governors of the states.”
“So, where does the statute say that issuing it through the governor requires either the governor’s consent or requires consultation with the governor? Where in the text do you take that from?” Bennett asked California’s state lawyer.
“In the plain meaning in ‘through the governor,’” Harbourt replied.
The judges, appearing via teleconference, seemed unmoved.
This line of questioning directly counters the assertion made last week by U.S. District Judge Charles R. Breyer, who ordered Trump to relinquish control of the California National Guard because “his actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.”
However, the appellate judges on Tuesday did appear to hesitate in giving the Trump administration a green light entirely.
Earlier in the hearing, Bennett and Judge Eric D. Miller took issue with a high ranking Justice Department lawyer’s claims that federal courts didn’t even have the authority to review the matter.
“There is no role for the court to play in reviewing that decision,” said Brett Shumate, assistant attorney general of the DOJ’s civil division. “There was a rebellion, and the president was unable to execute federal laws.”
At that, Bennett referenced a 1932 Supreme Court opinion that said, “The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order.”
While questioning the DOJ attorney, Miller also noted that, “In the normal course, the level of resistance encountered by federal officers is not zero.”
“Does that mean that the president every day is unable to execute the laws? And he could invoke this whenever?” he asked.
And while Shumate conceded that Trump hadn’t even attempted to formally notify Newsom that the White House was taking command of California’s troops, the DOJ official said Trump never really needed to anyway.
“The governor is merely a conduit, not a roadblock or a co-executive when the president decides to call up the Guard,” Shumate said.
This appellate panel will now decide whether it will endorse the lower court’s temporary restraining order and allow it to go in force. And whatever it decides is likely to get bounced up to the Supreme Court, as the White House seeks to assert the authority to strongarm Democratic governors who have decried Trump’s more hostile immigration-law-enforcement tactics as “fascist.”
However, Tuesday’s arguments did telegraph a potentially aggressive new stance from the DOJ: that Trump has “unreviewable” power to tap the National Guard, even to meet deportation quotas. That signal could be particularly alarming for civil liberties advocates, particularly in light of the Trump administration’s decision this week to send armed Marines to accompany Immigration and Customs Enforcement agents when they hunt down undocumented immigrants in California.
That issue came up when Miller raised a hypothetical situation when trying to gauge the limits of Trump’s power under the DOJ’s new framework.
“Suppose … there was no organized opposition at all. And the president says, ‘I’ve decided there’s a miracle target for the number of removals I’d like to have … and I can’t hit that target. I’m unable to execute laws and need to call the National Guard,’” Miller said. “Do you think that would meet the definition of … ‘unable to execute federal laws?’”
“It certainly could be. It would fall under the president’s discretion,” Shumate responded.
When Miller questioned whether “mere dissatisfaction” would be enough to justify a president calling up the military this way, Shumate doubled down and said he “wouldn’t want to concede that” at this point.
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Jose Pagliery is a reporter at NOTUS.
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