Federal courts have no role whatsoever in assessing President Donald Trump's decision to take control of the California National Guard, Assistant Attorney General Brett Shumate argued at a hearing before the U.S. Court of Appeals for the 9th Circuit on Tuesday. Two Trump-appointed members of the three-judge panel, Mark Bennett and Eric Miller, seemed appropriately skeptical of that bold claim. At the same time, they did not seem inclined to lift the 9th Circuit's stay on a temporary restraining order against Trump's federalization of the California National Guard, which was his response to protests against Immigration and Customs Enforcement (ICE) raids in Los Angeles.
U.S. District Judge Charles Breyer issued that order last week, agreeing with California Gov. Gavin Newsom that Trump's unilateral National Guard deployment was illegal and unconstitutional. However the 9th Circuit ultimately comes down on that question, any decision addressing the legal merits of Newsom's argument will amount to a rejection of the Trump administration's alarming position that the president has the authority to deploy National Guard troops at will, even without pretending to meet statutory requirements or citing any facts to support his decision. That argument would transform the National Guard, today's version of the state militia, into a federal force that the president can use at his discretion, without regard to constraints imposed by Congress or the 10th Amendment.
On June 7, when Trump instructed Secretary of Defense Pete Hegseth to deploy National Guard members to protect federal personnel and facilities from "violence and disorder" in California, he invoked his authority under 10 USC 12406. That law authorizes the president to "call into Federal service members and units of the National Guard of any State" in three circumstances: 1) when the United States "is invaded or is in danger of invasion by a foreign nation," 2) when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States," or 3) when "the President is unable with the regular forces to execute the laws of the United States."
The 9th Circuit hearing focused on Trump's claim that the third condition had been met. Bennett asked Shumate if it was the government's position that "the court has no role at all in reviewing what the president has done in calling forth the militia under Subsection 3." Yes, Shumate said, that is the government's position: "Our view is that the statute commits the decision whether to call up the forces to the president's unreviewable discretion. So no, there's no role for the court to play in reviewing that decision."
Suppose a president "simply invokes the statute, gives no reasons for doing it, [and] provides no support for doing it," Bennett said. Suppose "there are no facts offered by that president" to support that decision and "there is nothing which would appear to a court to justify it." Would it still be true that the court "has no role at all in determining" whether the president "correctly invoked Subsection 3"?
Yes, Shumate said: "That's correct, because if the statute is unreviewable, it's unreviewable."
What if the president "articulated a justification for his action that was not one of the enumerated purposes" in Section 12406, Miller wondered. Even then, Shumate replied, the answer would be the same: "If it's unreviewable, it's unreviewable." While "there can be cases where discretion can be abused," he said, "there are other checks [on] the president through the political process," and it is "not for a court to exceed its authority" by determining whether the president complied with the terms of the statute.
In the landmark 1803 case Marbury v. Madison, Shumate conceded, the Supreme Court said "it is emphatically the duty of the Judicial Department to say what the law is," noting that "those who apply the rule to particular cases must, of necessity, expound and interpret the rule." But "when a statute is delegating broad discretion to the president," he added, that is "a judgment that a court should respect," consistent with "the separation of powers."
The issue in this case, however, is the breadth of the president's discretion under Section 12406. And Shumate was saying that courts have no role in answering that question. That hardly seems consistent with the separation of powers, which includes judicial review to make sure the president is obeying the law.
"Suppose that we don't agree that the question is completely unreviewable," Miller said. "What does it mean for the president to be unable with regular forces to execute the laws?"
Shumate and Samuel Harbourt, California's supervising deputy solicitor general, delved into that issue during the rest of the one-hour hearing. But Trump's position that the courts have no business deciding whether he complied with the statute on which he relied speaks volumes about his disregard for the rule of law.
As Breyer saw it, the intermittently violent protests in Los Angeles did not mean Trump was "unable with regular forces to execute the laws." The defendants "argue that they satisfy this condition because the Los Angeles protests threatened the safety of federal law enforcement personnel and interfered with the sites where ICE agents were enforcing alien removal laws," Breyer noted. "Defendants concede that ICE succeeded in arresting 44 people on June 6, but insist that 'that limited success came with the risk of danger,' and that, had the protests not interfered with their operations, ICE 'would have been able to carry out additional execution-of-the-laws activity.'"
Breyer viewed that claim as "mere conjecture," noting that the defendants "provide no support" for it. But even if they are correct, he said, "the statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws, though of course federal employees should never have to fear danger when performing their jobs. The statute requires that the President be 'unable' to execute the laws of the United States. That did not happen here."
According to Shumate, however, that assessment is entirely within the president's statutory discretion. "It means [that] in his judgment the regular forces on the ground in Los Angeles aren't adequate and sufficient for him…to carry out the laws and enforce the laws," he told the 9th Circuit panel.
Miller noted that federal law enforcement officers often encounter "resistance" because their targets may "run away or even resort to violence." Does that mean the president "every day is unable to execute the laws"?
The situation in California is different, Shumate argued, because there is "a documented record of sustained ongoing mob violence continuing through this past weekend." Newsom, Los Angeles Mayor Karen Bass, and the Los Angeles Police Department have said there is no need for federal intervention because local and state agencies are up to the challenge. But Shumate rejected that take, saying "the regular forces" had proven inadequate.
The courts should not weigh in on that dispute, Shumate argued, given "the broad discretion" granted by Section 12406. That law, he noted, says "the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws." That language, he said, amounted to "an express delegation of Congress's power to call up the militia to the president."
That delegation, however, is contingent on one of the conditions listed in the statute. On its face, the Insurrection Act, which Trump has not invoked, grants the president much broader authority to deploy both National Guard members and active-duty military personnel. It says he may do so "whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings" (emphasis added).
Section 12406 similarly refers to a situation in which the president is "unable with the regular forces" to enforce federal law. But unlike the Insurrection Act, it does not commit that assessment exclusively to the president. Authorizing the president to decide what "numbers" are required when one of the law's conditions has been met is not the same as giving him complete discretion to decide whether the condition exists.
Miller suggested what such unlimited discretion might mean in practice. Suppose there was "no violence" and "no organized opposition at all," he said, but the president decided he did not have enough ICE personnel to hit his deportation target. Could he then invoke Section 12406, arguing that he was "unable with the regular forces" to execute the law?
By this point, you will not be surprised to learn that Shumate's answer was yes. "It would fall within the president's discretion based on the facts available to him," he said. If Congress viewed that interpretation as "an abuse of authority," he said, it could "check that decision," but that does not mean it would be subject to judicial review.
Although Bennett did not seem inclined to accept Shumate's maximalist view of Trump's powers under Section 12406, he also seemed skeptical of Breyer's take on what it means to say the president is "unable" to enforce federal law "with the regular forces." Bennett asked Harbourt whether the president can invoke the statute only when he is "wholly unable to execute the laws of the United States."
California "is certainly not asking the court to adopt that interpretation of prong three," Harbourt replied. But "at a bare minimum," he said, that subsection "has to mean more than what defendants are suggesting." Otherwise, he argued, it would not "exert any meaningful limit on executive authority in this area."
In the 1827 case Martin v. Mott, Bennett noted, the Supreme Court construed a similar law, which authorized the president to call up the militia to "execute the laws of the Union, suppress insurrections, and repel invasions." The Court unanimously agreed that "the authority to decide whether the exigency has arisen belongs exclusively to the President" and that "his decision is conclusive upon all other persons."
That case, which involved a militia private who refused to mobilize during the War of 1812, was "very different," Harbourt argued. "It involved a determination of a foreign invasion," he said, and it predated cases making it clear that "interpretation of a statute" is "a core exercise of judicial review." He added that the decision in Martin "was based on the sensitive considerations involving foreign policy" and involved the military "chain of command," an area where courts have long been reluctant to intervene. He also noted that "courts have uniformly rejected the government's very similar argument invoking Martin" in cases involving Trump's reliance on the Alien Enemies Act to summarily deport alleged gang members.
The judges—including Jennifer Sung, a Biden appointee—nevertheless seemed to view Martin as a serious problem for California. In that case, Sung said, the Court "seemed to be dealing with very similar phrasing about whenever there is an invasion," and it "seemingly rejected the exact argument that you're making" by concluding that Congress had given the president "the exclusive authority to determine whether the exigency existed."
The language of Section 12406, Harbourt argued, cannot support the "highly deferential, essentially unchecked view of authority under the third prong of the statute that the government is advancing here." While the law gives the president "substantial discretion" to determine the scope of a deployment "after a federalization decision has been properly made," he said, "you don't see that language in the factual predicate justifying the initial federalization decision."
Harbourt granted that the president should receive "some level of appropriate deference based upon his experience implementing federal law." But he said "there's really nothing to defer to here" because the government "made no attempt whatsoever to provide argument or evidence" that Trump "even contemplated more modest measures," as opposed to "the extreme response of calling in the National Guard and militarizing the situation." According to the government's position, Harbourt said, "the president can immediately reach for the most extreme possible measure on the table" whenever ICE or another federal law enforcement agency "encounter[s] any obstacle."
In light of the judges' comments during the hearing, it seems likely that the 9th Circuit will continue to block Breyer's order while the case proceeds in his court. If he decides to issue a preliminary injunction (a question he will consider at a hearing on Friday), the government is bound to appeal. If the 9th Circuit panel overturns the injunction, California is likely to seek review by an 11-judge panel of the appeals court, after which the case is apt to end up at the Supreme Court.
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