A federal appeals court appeared skeptical Tuesday that President Donald Trump violated federal law and the Constitution when he called up the California National Guard over Gov. Gavin Newsom’s objections in response to Los Angeles protests.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard oral arguments Tuesday over a lower court ruling that Trump must return control of the state guard to Newsom.
The 9th Circuit temporarily paused that lower court order at the request of the Trump administration and is considering whether to keep the order frozen entirely while the case plays out.
California filed the lawsuit as Democrats have increasingly criticized Trump’s heavy-handed response to protests of his immigration policies.
California’s attorney, Samuel Harbourt, told the 9th Circuit that Trump did not comply with federal law requiring a “rebellion” or that the president was unable to carry out federal law.
Harbourt said the Trump administration had adopted an “expansive, near limitless” reading of the law, and pointed out that Trump’s June 7 memorandum that supported calling up the National Guard was not limited to Los Angeles or support for immigration enforcement.
“There is no real limit that can be imposed on the scope of the mission,” Harbourt said. “That is essentially anything the federal government is doing. That is staggeringly broad in scope.”
Judge Jennifer Sung, a Biden appointee, pointed out that there are prior Supreme Court cases dealing with similar laws that “seemingly reject the exact argument you’re making.”
Sung said that the Supreme Court has held in prior cases that Congress used similar language to give the president wide latitude to declare an emergency like an invasion.
“Congress was essentially giving the president the authority, the exclusive authority to say the exigency existed,” Sung said.
Harbourt said that court decisions that predate the Posse Comitatus Act, which normally bars the use of the military for domestic law enforcement, “need to be looked at with some caution before they are too readily applied to the current situation.”
Judge Eric D. Miller responded that California had “maybe good arguments to the Supreme Court to reconsider those cases,” but the justices have directed that lower courts follow precedents unless stated otherwise.
However, several times during the arguments, the judges questioned the Trump administration position that courts could never second-guess the president’s judgment of when to federalize the state guard.
Justice Department attorney Brett Shumate argued that Congress’ statute gave broad, unreviewable authority to call up the National Guard, regardless of whether there’s evidence of an invasion or rebellion.
“There are other checks on the president in the political process,” Shumate said, referring to Congress.
The panel did not indicate when it might rule in the fast-moving litigation.
Padilla speech
Sen. Alex Padilla, D-Calif., in a Senate floor speech Tuesday about his forced removal and detention at a press conference with Homeland Security Secretary Kristi Noem, highlighted Noem’s stated mission to “liberate” Los Angeles from its elected leaders.
“Are we truly prepared to live in a country where the president can deploy the armed forces to decide which duly elected mayors and governors can lead their constituents?” Padilla said.
Padilla called that attitude and the deployment of troops “fundamentally un-American” during his speech. Padilla and other Senate Judiciary Democrats signed onto a letter Tuesday asking for a hearing with Noem.
“The President should not be allowed to bypass constitutional principles like due process, separation of powers, and federalism,” the letter said.
California filed the suit after Trump called up the state National Guard in response to at-times violent protests in Los Angeles in response to Trump’s immigration policies.
Judge Charles Breyer of the U.S. District Court for the Northern District of California on Thursday found that Trump’s call-up of the National Guard likely violated the Constitution and federal statute governing when the guard can be federalized.
Breyer is still scheduled to hold a hearing on a preliminary injunction in the case on Friday.
The case is Gavin Newsom et al. v. Donald J. Trump et al.
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